Nancy Abudu – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Nancy Abudu, currently litigating with the Southern Poverty Law Center, has spent her career working on a number of legally and politically salient issues, leaving a long paper trail for opponents to mine.

Background

Born in Alexandria Virginia to an immigrant family from Ghana, Nancy Gbana Abudu graduated from Columbia University in 1996 and from Tulane University Law School in 1999. While in law school, Abudu participated as a student attorney with the Tulane Environmental Law Clinic. See Leslie Zganjar, Judge Orders Hearing on Possible DEQ Bias, A.P. State & Local Wire, Aug. 31, 1998.

Upon graduation, Abudu joined Skadden Arps Slate Meagher & Flom LLP as an Associate. In 2002, she became staff attorney with the Eleventh Circuit Court of Appeals. In 2005, Abudu joined the American Civil Liberties Union, eventually becoming the Legal Director of the ACLU of Florida.

In 2019, Abudu joined the Southern Poverty Law Center in Atlanta, where she works as interim director for strategic litigation.

History of the Seat

Abudu has been nominated for a Georgia based seat on the U.S. Court of Appeals for the Eleventh Circuit. This seat opened on September 30, 2021, when Judge Beverly Martin left the court.

Legal Experience

Setting aside brief stints at Skadden Arps and as a staff attorney with the Eleventh Circuit, Abudu has spent virtually her entire legal career as a civil rights attorney, at the ACLU Voting Rights Project, at the ACLU of Florida, and at the Southern Poverty Law Center.

From 2005 to 2013, Abudu worked at the ACLU Voting Rights Center. Among the prominent cases she argued there, Abudu unsuccessfully challenged felon disenfranchisement provisions in Mississippi, see Young v. Hosemann, 598 F.3d 184 (5th Cir. 2010), Arizona, see Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010), and in Tennessee. See Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010).

From 2013 to 2019, Abudu led the ACLU of Florida as Legal Director (full disclosure, the current Legal Director of the ACLU of Florida, Daniel Tilley, wrote a number of pieces for this blog). Among the matters she handled with the office, Abudu challenged residency restrictions on convicted sex offenders, arguing that they were unconstitutionally restrictive. Doe v. Miami-Dade Cnty., 846 F.3d 1180 (11th Cir. 2017). She also unsuccessfully challenged Palm Beach County’s policy of suspicionless drug testing for applicants to be substitute teachers. See Fridenberg v. Sch. Bd. of Palm Beach Cnty., 911 F.3d 10 (11th Cir. 2018).

In other suits, Abudu challenged Felon reinfranchisement provisions passed by the Florida legislature, arguing that they were discriminatory based on gender. See Jones v. Gov. of Florida, 15 F.4th 1062 (11th Cir. 2021). However, this argument was rejected by the Eleventh Circuit, who found that the suit could only succeed with evidence of intentional discrimination, and such evidence was lacking. See id. at 1065. Abudu also submitted Florida’s felon disenfranchisement policies to the United Nations Committee on Human Rights for review of human rights violations. Press Release, American Civil Liberties Union of Florida, Democracy Imprisoned (Sept. 25, 2013).

On the First Amendment side, Abudu sued Brevard County to enjoin the County’s policy of refusing to allow atheists or secular humanists to deliver county invocations. See Williamson v. Brevard Cnty., 276 F. Supp. 3d 1260 (M.D. Fla. 2017).

Since 2019, Abudu has worked for the Southern Poverty Law Center. Among the suits she handled there, Abudu joined the ACLU of Florida in a suit unsuccessfully challenging the denial and delay in hormone therapies to a transgender inmate. Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257 (11th Cir. 2020).

Writings and Speeches

In her role at the ACLU and at the SPLC, Abudu has written and spoken extensively on legal and political issues. For example, Abudu debated conservative Hans Von Spakovsky at a Federalist Society Forum in 2011. See Kent Scheidegger, Felon Voting Podcast, Crime and Consequence, Feb. 3, 2012. Abudu has also spoken out against voter ID laws. See Seth Stern, Officials Block Texas Voter ID Law; Justice Department Rules Requirement Biased, Could Disproportionately Harm Minority Voting, Charleston Daily Mail, Mar. 13, 2012. Some of her writings are summarized below.

School to Prison Pipeline

In 2017, Abudu co-authored a paper with Prof. Ron Miles criticizing the expansion of the School-to-Prison pipeline, or the over-disciplining of juvenile offenses in a manner that increases the likelihood of adult re-offending. See Nancy G. Abudu and Ron E. Miles, Challenging the Status Quo: An Integrated Approach to Dismantling the School-to-Prison Pipeline, 30 St. Thomas L. Rev. 56 (Fall 2017). In the paper, Abudu criticizes “zero-tolerance” disciplinary policies and similar mechanisms as drawing on the same fears that underlay school segregation. See id. at 57-58. For example, Abudu notes: “Oftentimes, the unstated goal behind these practices is to prove the fiction that minority children have a predisposition for bad behavior, even though decades of social science research recognizes the role of implicit bias with respect to enforcing school disciplinary policies.” Id. at 58. Abudu also criticizes legal schemes that limit liability for School Resource Officers “SROs” who injure children. Id. at 60. Instead, Abudu advocates for “restorative justice” and an increased focus on civil diversion. Id. at 64-66.

Gerrymandering

In a 2020 paper, Abudu was critical of the use of political gerrymandering to dilute minority votes, describing the practice as one that “cements historical forms of segregation, especially in the areas of housing and education.” Nancy G. Abudu, Following the Blueprint: How a New Generation of Segregationists is Advancing Racial Gerrymandering, 45 Human Rights 20 (2020). Noting the unwillingness of courts to overturn gerrymanders, Abudu argues that the solution can be to “pressure and shame elected officials” into opposing racial gerrymanders. Id. at 23.

Overall Assessment

Throughout her career, Abudu has not hesitated in taking strong positions on the law, even where a court has ultimately disagreed. While her advocacy is likely appreciated by her clients, it is also likely to draw strong opposition from those who oppose the positions she has taken. Republicans may particularly highlight Abudu’s presentation of Florida’s felon disenfranchisement policies to the UN Commission on Human Rights, arguing that the move approves international oversight over American policies. Ultimately, while Abudu is unlikely to get much bipartisan support, she also remains a favorite for confirmation.

67 Comments

  1. This is a stellar nominee, an A+. This is the definition of elections have consequences as this is a direct result of senators Ossoff & Warnock winning the runoffs. She should be added to the SCOTUS short list once confirmed.

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  2. If a judicial nominee gets an A+ grade from Dequan or Shawn then you know this is one f-ing good nominee as those 2 gentleman are tough graders…..You don’t get an A grade from those 2 for just turning in your homework, you really have to earn it!..

    Dequan and Shawn are tougher graders than this guy! lol

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    • This truly is a nominee out of the mold of what a Democrat president with control of the senate should be nominating. Both her & Myrna Perez truly are outstanding. Many others are really good too but those two stand out from Biden’s circuit court nominees.

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    • So far I’ve given a grade of A to 5 circuit court nominees: Myrna Perez, Holly Thomas, Jennifer Sung, Nancy Abudu, and Arianna Freeman.

      That said, I still think there were better options for this seat, namely Fred Smith Jr. and Lauren Sudeall. But I’m still quite thrilled with Abudu.

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      • All five of those names are in my top seven along with Ketanji Brown Jackson & Candace Jackson-Akiwumi. Every time I read more about Nancy Abudu, and Arianna Freeman they get better & better like a fine wine. I am really excited to watch both of their hearings. It really sucks judge Childs nomination will put a damper on an other wise really good last month of nominations.

        I will give Shawn credit, he did name check Arianna Freeman early on last year. Phenomenal choice, particularly in a purple state.

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      • Yea, you & me don’t see quite eye to eye when it comes to lawyers getting a lower grade solely on them working for big law firms… Lol

        But it’s good to see our top 7 are the same, just in a different order despite even that big of a difference.

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  3. I hope the next hearing includes both Abudu and Childs, not one but both of them…..There should be a hearing next Wed when they return…..And Thurs should be the “held over” week for Andre Mathis…..

    After the presidents day week off, they are in all of March and first week or so of April before Easter break so that will be a time to really move on hearings & confirmations..

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    • Three things need to be done from the SJC;

      1. There needs to be a hearing for the next three straight weeks. Hopefully we have no more non-judicial nominees that need hearings for a while so we can have 6 nominees in each hearing.

      2. We need to have an executive vote every Thursday starting next week to the next recess.

      3. Durbin needs to start putting the nominees from each hearing up for a vote the very next week. And he absolutely needs to stop letting the GOP hold over nominees TWICE. That’s insane. I would say it shouldn’t even be a guarantee to hold over every nominee once but I’ll give them that since Republicans’ did not depart from that custom even for Amy Comey Barrett.

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    • VERY great article Frank. Thanks for the link. I was wondering what was going on with those three vacancies.

      My opinion, both sides have some great points. Biden is not doing enough to court the Latino community. He needs to do more. And I’m talking both when it comes to judicial nominees & in general.

      On the other hand, while I am personally pro statehood for Puerto Rico, there is no reason why Biden needs to nominate an aide to Resident Commissioner Jenniffer González-Colón, a Republican. Veronica Ferraiuoli Hornedo (Born around 1971) shouldn’t be considered unless she has some progressive background that far outweighs her working for a Republican.

      Sulay Rios-Fuentes (Born around 1977) would be a far better nominee with her federal defender & legal aid society background.

      I do agree that all 3 nominees should be Puerto Rican & from the island however. I saw that one of Trump nominees to that court was from the Dominican Republic. I didn’t do any research to see if one of her parents was Puerto Rican however.

      Finally, while Gustavo Gelpí is a fine judge, I wish Biden had went with his other pick mentioned in the article for the 1st circuit court of appeals. Gina R. Méndez-Miró was born around 1975 making her about a decade younger, she seems to be just as progressive & she would have made history as the first openly LGBT judge on any circuit court if she was confirmed before Beth Robinson.

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    • Oh wow, I think this is the first non Wednesday hearing of the Biden administration. The real cherry on top would be if they still have a hearing next Wednesday & the Tuesday hearing will just be one of two next week. But of course that’s wishful thinking…lol

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      • lol, I didn’t even notice it’s a Tues hearing until you mentioned it…..I just assumed it was Wed…..That’s interesting why it’s a Tues instead of a Wed….Perhaps there is some senate business next Wed – so not sure why the change

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    • I halfway agree with you Shawn. I actually think Biden will nominate Sulay Rios-Fuentes . While I am pro statehood, there are a lot of Puerto Ricans who are not. When you throw in both other choices of independence or the status quo, statehood isn’t even the majority opinion. I don’t see Biden getting hurt by nominating her with her being a young progressive.

      As for senators voting no on her, I really only see the senators of the 4 states wit huge populations of Puerto Rican people in question for a no vote. Florida already has two GOP senators so they are a no regardless. I believe both Connecticut senators would support her. In New York I don’t see Chuck Schumer voting her down. Senator Gillibrand I would normally say might be a possible no vote, but after her nomination of Jennifer Reardon receiving so much backlash, I don’t think she will rock the boat much here. That leaves New Jersey. I believe senator Booker would support her so the only realistic Democrat no vote I could really see is senator Menendez (Your favorite senator). Unless there is something in her background that would scare off the normal 3 or so GOP senators willing to support most nominees, I think she would be ok for confirmation…

      I do agree with Shawn that Veronica Ferraiuoli Hornedo will not be selected. He an just easily pick one of the other names on the recommendation list that is a Democrat at the very least.

      @Rick – Yup, that was the first thing I noticed, a Tuesday hearing. I immediately hoped that meant we were getting two hearings next week…. Lol

      Also, I expect even more retirements from the central California district. Feinstein & Padilla really should have 3 or 4 more names teed up for quick recommendation.

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      • Independence is a position that gets less than 10% of support in Puerto Rico, and is basically confined to the far left. It’s a toxic position in Puerto Rico politics (which is largely either statehood or the status quo of remaining a commonwealth).
        Biden could take a beating in the Puerto Rican community if he picks Rios-Fuentes.

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      • My personal choice would be for Biden to just pick another young progressive, maybe from the Puerto Rico ACLU, Innocence Project or Legal Aid Society. The choice should either be pro statehood or not well documented on the issue. But my gut tells me he will go through with the Sulay Rios-Fuentes if she has already been through vetting.

        Biden just signed a bill to assist with Puerto Rico’s debt a week or two ago plus he has two other positions to fill on the court so if I had to bet I would say she will be nominated. But I agree it’s probably not the politically best decision as you can just find somebody else just as progressive won’t be as much of an issue. I would like to see the other names that were recommended.

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  7. Politics in Puerto Rico don’t fall along the same lines as they do in the mainland United States. The statehood/independence/continue as territory divide are more important than Democrat/Republican divide.

    Blatantly disregarding the Puerto Rican delegation on a judicial nominee will give the Biden Administration another political headache it can do without.

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    • @Mitch

      Yea I’ve noticed that over the years. You can’t just lump issues into Democrat & Republican in Puerto Rico. If the commission only gave Biden a list of 3 names then I would agree with him either vetting his own candidates (Albeit maybe one that is pro statehood or at least not publicly opposed to it). But if they gave him a list of more then a handful, I’m sure at least 3 of them are acceptable.

      But yea I agree there is no need to make more trouble, particularly with the Latin American community where he is struggling in, if there is an acceptable alternative. I mean at the end of the day I am sure the PR recommendations can’t be worse then some of the New Jersey recommendations he accepted… Lol

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  9. Wow, that is big news. Right now, I think it’ll be either Kantaji Jackson Brown, Michelle Childs, or Leondra Kruger. Childs has Jim Clyburn backing her, and he’s a major VIP. Krueger has Nancy Pelosi and Kamala Harris in her corner. Also, Krueger would bring geographical diversity to the court. I think much of the DC Establishment wants Jackson to be the choice.

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    • I hadn’t heard of him before but reviewing his record he looks like a solid pick. He seems to be born around 1986 so I would say he would be better suited for one of the remaining NYC district court vacancies for now, especially since I don’t see another circuit court seat becoming available any time soon. I would love to see him replace Jennifer Reardon… Lol

      I see he graduated from Pennsylvania. It would be good to see if he could be snucked into one of their district court vacancies since they have more then a handful but I’m not sure if he has any links to the state since he graduated.

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      • Haaaaa… Yea I’m all for packing the courts with young liberals but he may be a stretch even for me. But the district court, no problem in my book.

        On another note, hopefully if KBJ is the nominee to replace Breyer maybe Biden will get her replacement to the DC circuit right. After the Childs nomination i expect a rock star nomination to make up for that. Hopefully Deepak Gupta, Karla Gilbride or the first Hispanic nominee, most likely from Tom Saenz list he sent to the White House. We have discussed on prior post but Andrew Crespo would be my personal favorite pick. I wish he would have been nominated to one of the Massachusetts district court seats earlier last year already.

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      • Ian is snarky and sarcastic in his Twitter feed, but he’s been covering SCTOUS cases and judicial nominations for long time…..He’d be a solid progressive if ever on a court….

        Here is an interesting tweet i saw earlier RE; Childs nomination

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      • Hmmmm… Well then I guess Biden’s hands were tied because senator Graham does deserve respect because he prevents a lot of tie votes from the SJC. I would only give him, Murkoski & Collins that kind of veto power. It sucks they couldn’t sell him on her for the 4th circuit.

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      • @Rick/Dequan

        I suspected that this may have been the case when Childs was nominated, as I mentioned multiple times in a previous thread. I think Biden should have pushed harder regarding Childs on the 4th Circuit, and even offered to let Graham personally pick a District Court nominee in exchange.

        Regarding Ian Millhiser, I don’t think he has practiced law in more than 10-15 years, so I doubt he is seriously interested in a being a judge.

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      • Yup, Shawn did mention this possibly being the reason Childs was nominated to DC instead of the 4th circuit. Shawn was right on that.

        And I totally agree with Shawn on what I would have done with Graham. I would have told him he could pick the US attorney & I would have given him the option to pick her replacement on the district court with any moderate Independent or right of center Republican. But under no circumstances should Childs have been nominated to DC.

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  12. See that Clyburn was on CNN and heavily pitched Childs as the SCOUS nominee, claiming that she would get the votes of both Republican senators from SC. I’d have to rank her as the favorite (60+% chance) here with such a swift and public outing of support from the person who put Biden over the top last year, as much as that would frustrate progressives who would like a younger and more liberal nominee. If it isn’t Childs, Brown-Jackson would be my best guess as who Biden would go for.

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    • Had judge Childs already been confirmed to the DC circuit I would probably agree she would be the front runner (Sadly). I truly think with her not even having a hearing yet, Biden will give her the usually interview but I truly don’t see him picking her as a district court judge over KBJ who is half a decade younger, currently on the second highest court in the land & was a runner up in 2016 for SCOTUS.

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    • If Biden is unable to say no to Clyburn on this SCOTUS seat, he should be impeached and removed. Judge Childs is unqualified to be on the Supreme Court. This would a pure political hackery and should have no place in an independent judiciary.

      Nor do I think she would get many GOP votes, that’s a fantasy (as much as they *should* vote for her to avoid a more liberal nominee.). But they will behave the same way that the Democrats did with Harriet Miers.

      I would seriously consider not voting for Biden in 2024 if he nominates Childs. It would wipe out any other accomplishments that he may have, and even the threat of Trump would not be enough to sway me.

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      • I am truly praying Biden doesn’t bow to the pressure on Childs. She would only be slightly better then Harriet Myers was when she was nominated. I am actually confident she will not be the nominee. I have faith in Ron Klain & Rumus to talk sense into Biden. That, combined with Childs not being on the circuit court makes me sleep easy tonight.

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  13. Looks like we wont know officially who is being interviewed at The White House…

    “Biden is likely to meet with other candidates, though the White House has already made known those conversations will be confidential. When his administration restored a policy of publicly disclosing White House visitor logs, it specified that potential Supreme Court nominees wouldn’t be included.”

    (https://www.cnn.com/2022/01/26/politics/scotus-confirmation-white-house-breyer/index.html)

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    • I 1000% agree with you. I hope this lights a fire in the base & fuels Durbin & Schumer to take it up a notch.

      One thing I read today scares me a little. I read that when the agreement between McConnell & Schumer was made to turn over the majority, part of the agreement was in each 50/50 committee, a quorum is met with 50% plus one. If that is the case, I do not know what the plan B or tie breaker is if all of the Republicans simply refused to show up for the vote on the nominee. I’m not sure if they can send a nominee to the floor to be discharged if there was no quorum when the vote took place. Anybody have more info on that?

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      • Amy Comey Barret cleared the SJC with an 11-0 vote because no Democrats showed up……I hope the same holds true if GOP senators do the same thing….And hers was in a presidential election year when millions of people had already voted – in the middle of a pandemic before vaccines were available,

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      • The Democrats protested the Amy Comey Barrett vote in the SJC but that was when the Republicans had the majority. So they had a quorum even without a single Democrat.

        Now the SJC is divided evenly & I believe a quorum is when there is 50% plus one. I’m sure there is a loophole to get around it but it does concern me. I don’t think they would pull that for this vacancy but it concerns me if we were to get a second surprise vacancy before the midterms.

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  16. Childs hearing is postponed. I don’t know if this is good news or bad news. I’m hoping it’s not because Biden is now moving her to the top of the list so they don’t want her to have to have two hearings. I’m hoping i’s more because Biden is not picking her so she would rather stay in South Carolina. I don’t know if I should be happy or sad about this news but either way I hope we get Nancy Abudu at least in the hearing instead…

    (https://www.axios.com/supreme-court-biden-senate-judiciary-committee-caa0c9a5-2596-4838-bc55-cde48fb29f02.html)

    (https://twitter.com/rachelvscott/status/1487166694925774848?cxt=HHwWgMC9zdmOvaMpAAAA)

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    • I think as a nod to Clyburn, she is getting official consideration for SCOTUS when she is wholly unqualified for the seat. If Biden gives any serious consideration to appointing Childs, he should be impeached and removed. If it’s all a dog and pony show, fine. But if any credible report comes out later that Biden seriously considered putting Childs on SCOTUS or actually does so, he should be impeached or removed via 25th Amendment.

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      • I was thinking it’s just a show as well to please Clyburn. I don’t think she is unqualified, I jut think she is a horrible choice. Like really horrible. Only Harriet Myers & the two Nixon rejected I can think of were worse choices (Not taking ideology in to play) over the past half century. You could make an argument Sandra Day O’Connor was less qualified as a mid level state court judge but I wouldn’t put her in the same category because when Regan was elected, Carter was the only president prior to him that really nominated numerous women to the federal bench & of course he wouldn’t elevate a Carter judge.

        I am still holding out hope that Klain & Remus are in Biden’s ear & knows Childs is not nearly the best candidate. I was actually hoping her hearing was Tuesday because I think she could have showed how less qualified she was compared to KBJ was at her hearing last year.

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      • I disagree very strongly, except on Miers (O’Connor is a special case).

        Both of the Nixon choices were on a Circuit court for a decade. Even Carswell as dumb as he was, was more qualified than Childs and Miers. If Childs also served for several years on a circuit court, I would say she would be qualified as well. But I suspect that Childs would struggle with some of the questions that come before the Supreme Court that she had not dealt with as an attorney or as a judge.

        And Sandra Day O’Connor was quite intelligent, she was third in her class at Stanford Law. She also was a politician and had those skills too. We have no evidence whatsoever that Childs has any sort of those kind of credentials. Justices like Alito, Gorsuch, Barrett, and Roberts are really intelligent. You can’t put someone who up is nowhere near their level and expect them to not get eaten alive. Of course, neither did Earl Warren, but he had political skills that allowed him to persuade others like O’Connor. KBJ has the intellectual chops to go head to head with Alito or Gorsuch.

        Judge Childs wouldn’t be on the top 100 list for a SCOTUS spot if not for Clyburn. She is an expert on employment and labor law… after much like Andre Mathis, defending repeatedly big corporations against regular people who were discriminated against, injured, sexually harassed, etc.

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      • So I misremembered about Carswell. He only served on the 5th Circuit for a year, so yes he would be in the completely unqualified category given that he has nothing else of merit in his resume. But Haynesworth is certainly more qualified.

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      • I might even put Childs in Janie Shores territory. I really want to be excited about this vacancy but I can’t be until I know she will not be the nominee.

        The biggest gift would be for the hearing to be delayed until after the hearing & if she is not selected, she decides to stay o the bench in South Carolina instead of moving to DC knowing she has no shot at a future SCOTUS with her age. I suspect that will not happen but it would be a dream scenario.

        Liked by 1 person

  17. Pingback: The Unexpected Opportunity – Assessing the Landscape of Judicial Vacancies | The Vetting Room

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