Jessica Clarke – Nominee to the U.S. District Court for the Southern District of New York

Civil rights attorney Jessica Clarke, currently with the New York Attorney General’s Office, is President Biden’s second nomination to the Southern District of New York.

Background

The 38 year old Clarke gained her undergraduate degree from Northwestern University in 2005 and then gained a J.D. from the Ohio State University Moritz College of Law in 2008.

After graduating, Clarke clerked for Judge Solomon Oliver on the U.S. District Court for the Northern District of Ohio. Clarke then joined the Department of Justice, working in the Civil Rights Division during the Obama Administration. In 2016, Clarke left to join the civil rights firm Emery Celli Brinckerhoff & Abady. In 2019, Clarke joined the New York Attorney General’s Civil Rights Bureau as Chief, where she currently works.

History of the Seat

Clarke has been tapped for a seat on the U.S. District Court for the Southern District of New York to a seat vacated by Judge Colleen McMahon, who took senior status on April 21, 2021. Clarke was recommended by Senate Majority Leader Chuck Schumer on September 1, 2021 and was nominated on December 15, 2021.

Legal Career

Clarke started her post-clerkship career at the Civil Rights Division of the U.S. Department of Justice, where she worked on the Housing & Civil Enforcement Division. Notably, Clarke was trial counsel for the government in prosecuting the towns of Colorado City, Arizona, and Hildale, Utah, for discriminating in housing against individuals who were not members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints. See Fernanda Santos, Town on Trial in Complaints of Bias Against Sect Outsiders, N.Y. Times, Jan. 21, 2016. Lawyers for the town accused the government of discriminating against an unpopular religion. See id. The trial ended with a verdict for the government, which was upheld on appeal. See Howard Fischer, Court Upholds Ruling Colorado City Abused Power, Arizona Capitol Times, Aug. 26, 2019, https://azcapitoltimes.com/news/2019/08/26/court-upholds-ruling-colorado-city-abused-power/.

From 2016 to 2019, Clarke was at the Emery Celli Brinckerhoff & Abady. During this time, Clarke represented Stephanie Rosenfeld, a Brooklyn prosecutor who alleged that her colleagues illegally wiretapped her cellphone. See Rosenfeld v. Leach, 370 F. Supp. 3d 335 (E.D.N.Y. 2019).

Since 2019, Clarke has been with the New York Attorney General’s Office. Among the matters she handled there, Clarke led the Attorney General’s successful suit against Rennselear County’s use of limited early voting polling locations, in which a judge found that the locations chosen would not lead to equitable access to the polls. See People v. Schofield, 2021 N.Y. Misc. LEXIS 5247 (N.Y.S. June 7, 2021).

Overall Assessment

Given her youth and focus on civil rights litigation, Clarke is likely to draw opposition from Republican Senators. However, there is little that would draw Democratic senators to oppose her, which gives Clarke a strong chance at both confirmation and, potentially, elevation.

56 Comments

  1. Another home run pick. Despite a lot of our focus on nominees such as Christine O’Hearn, Jennifer Rearden & J Childs, Biden really should be commended overall for his judicial nominees. This one is one of his finest district court picks not too far behind Dale Ho.

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  2. Dequan – Shawn,

    How would you like to start this Thurs will a new opening on the First Circuit?

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    • This one genuinely shocked me. I expected Howard to hold on until the next GOP President. OTOH, I expected Sandra Lynch to go senior by now.

      And I don’t have any names off the top of my head as a good replacement. I don’t like the idea of elevating Samantha Elliott, because there has to be someone better (Elliott would get a C for me).

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      • I’m ecstatic to have circuit court of all Democrat nominees, even if it’s the first circuit with six judges. Here a couple of names to start with to replace him.

        Gilles Bissonnette (Born around 1981) – Legal Director at the ACLU of New Hampshire.

        David Betancourt (Born around 1976) – Federal defender

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      • It is unclear whether Betancourt has any appellate or federal court experience and is qualified for the 1st Circuit.

        Bissonnette would certainly work. None of the federal defenders in NH are of the appropriate age. But I think there has to be a plaintiffs or labor/employment attorney that would be a good fit here.

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      • Hard to find many strong progressives for New Hampshire. I’ll throw out a few more possibilities.

        Tracey Goyette (1969): a Partner at Shaheen & Gordon. She clerked for Carter appointed former Fourth Circuit judge Francis Dominic Murnaghan. She’s the only one I’m confident enough has a chance that I would put her on my spreadsheet.

        -Michael Delaney (1969): Democrat Attorney General of NH from 2009-13.
        -Karyl Martin (1976): Deputy General of the University System of New Hampshire, former clerk to Paul Barbadoro (US District Court) and James E. Duggan (New Hampshire Supreme Court).
        -Danielle Pacik (1973): Deputy City Solicitor of Concord; former clerk to James E. Duggan (New Hampshire Supreme Court).

        Attorneys who do seem progressive but don’t have any clear appellate experience:

        -Sarah Mattson Dustin (1979): Executive Director of New Hampshire Legal Assistance/ also former clerk to Paul Barbadoro/ Harvard undergrad and Harvard Law.
        -Rachel Hampe (1972): Counsel at McLane Middleton. Received the Jon Meyer Award from the New Hampshire Civil Liberties Union Foundation in 2002 (can’t find any other winners of that specific award).
        -Adam Mordecai (1981): Partner at Morrison Mahoney LLP. former President of the Tri-State Defense Lawyers Association.

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      • @Ethan

        Good list.

        I would also add S. Amy Spencer (born around 1977) from Shaheen Gordon as well, while she isn’t terribly progressive w/ too much corporate work, she has argued cases in front of the 1st Circ and NH SC and has worked on criminal defense and election cases as well.

        One could also include Ronald Abramson, also from Shaheen Gordon, who works on immigration and criminal defense cases and argued cases in the circuit courts. He would actually be a fantastic choice if not for his age and demographics, he appears to have been born in 1968. He also has a whole bunch of donations to the Presidential campaigns of Sanders and Warren. That said I would prefer Abramson to some Big Law partner or AUSA without a clear progressive record.

        But NH is a state where we may have to accept that there isn’t a perfect choice.

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  3. Rest In Peace judge Feldman. My condolences to his family.

    As for the 1st circuit seat, Becca Heller (Born around 1982) would be an outstanding choice. I don’t expect the nominee to be that good from New Hampshire but if it was, WOW. Add on it replacing a Republican appointee & that would be the icing on the cake.

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    • I don’t see that Heller has any ties to NH except going to Dartmouth, but perhaps she grew up there. And regardless she would have to want to move to NH, not sure that she will given her job.

      I don’t think there should be any effort into replacing Feldman until after the midterms, as there are plenty of judgeships to fill that do not need GOP consent. If the Democrats hold the Senate, then you can get rid of the blue slip and put a 40 year old attorney here.

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      • I 100% agree with you Shawn. With Breyers seat added on top of an already stacked agenda, there should be enough district court seats in blue seats, states with Republicans that are willing to work in good faith & ALL circuit court seats to keep them busy through the end of the year.

        If Dems hold on to the majority after the midterms I would hope they completely end blue slips for judicial nominees. If they lost they will have two years to compromise so no need to waste time now with the majority.

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  4. GW Bush appointee Claire Eagan will be taking senior status in October from her district court seat in Oklahoma. That will probably be another seat we will not get a nominee for until after the midterms.

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    • Yeah I don’t think Biden should bother with a nominee for this seat. If the Democrats lose the Senate, then they can see if a 1-for-1 deal can be struck in Oklahoma (there’s another seat that is vacant here). I would look for a Native American progressive for one of these seats and trade it for a GOP pick. One option is Mary Kathryn Nagle, who is Cherokee and grew up in Oklahoma.
      Obviously, if the Dems hold the Senate, they should get rid of blue slips.

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      • Exactly. No circuit court seat or district court seat in a blue state should be left unfilled if the vacancy occurs before September. And if one occurs in or after September, regardless of what happens in the midterms, Schumer should continue confirming judges right up until Christmas just as Republicans did in 2020.

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      • @Dequan

        Unfortunately Manchin may or may not support voting for nominees in the lame duck if a hearing has not already happened. He strongly objected to ACB being confirmed before the election or after if Trump was defeated. Granted this is a different circumstance (after a midterm rather than a Presidential election), and there is a decent chance that control of the Senate may not be decided until after the Georgia runoff (again).

        Basically if Clinton or Obama appointed judges don’t want to stick around until 2025 at the earliest, they need to leave by July 1 at the latest. Especially the Circuit court ones.

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      • I know Manchin did not vote for ACB but I thought he voted for most of the district court & ACB replacement on the 7th circuit, all after the presidential election. If my memory is correct & he did, I hope he remains consistent, especially after a midterm & not presidential election. But of course the main hope is the Democrats find a way to hold the senate.

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      • Here are a list of circuit court judges that need to make a decision on senior status immediately. Some of these judges aren’t eligible until late 2022, so they can set that date. And the Biden admin should assume these judges are retiring and have nominees ready.

        Sandra Lynch-1st Circ
        Joseph Greenaway- 3rd
        James Wynn- 4th
        Carl Stewart- 5th
        James Graves-5th
        Karen Nelson Moore-6th
        Eric Clay-6th
        Jane Stranch-6th
        Sidney Thomas-9th
        Ronald Gould-9th
        Kim Wardlaw-9th
        Johnnie Rawlinson-9th
        Andrew Hurwitz-9th
        Scott Matheson-10th
        Charles Wilson-11th
        Judith W Rogers-DC

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      • @Dequan

        You’re right that Manchin did vote for Kirsch, so he may be fine with finishing processing judges during the lame duck. Another concern should be whether Sinema and Feinstein show up to vote during a lame duck session. The last issue is that if Georgia goes to a runoff, Senator Warnock may be unavailable as well.

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      • That’s a good list Shawn. Hopefully we get some surprise GOP nominated judges before the end of the year as well. If I had to guess out of your list, I would say the following are most likely to go senior;

        Sandra Lynch-1st Circ
        Karen Nelson Moore-6th
        Eric Clay-6th
        Ronald Gould-9th
        Johnnie Rawlinson-9th
        Andrew Hurwitz-9th
        Judith W Rogers-DC

        And your absolutely right Biden should already be speaking with the Democrat senators in those states to have a nominee ready to go. Fromm the day the retirement letter is received the only thing that should need to be done is the FBI background check. RBG die on September 18th. ACB was nominated, confirmed & her replacement Thomas Kirsch were both confirmed less then 3 months to the day of RBG death. No reason why Democrats can’t work at the same speed.

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    • Honestly, I could care less if Childs’ nomination is delayed. She’s a horrible and unqualified candidate for the DC Circuit who is only being nominated as political patronage. I would vote against her in committee, on the filibuster, and for confirmation.

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      • I’m interested in knowing why y’all think Childs is unqualified. I’d agree that she isn’t the best nominee and understand about the political patronage thing but I don’t think she’s so unqualified as to vote against her if nominated and risk not getting Breyer’s seat filled before the midterm elections.

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      • My personal opinion is judge Childs is qualified, just a horrible choice for the Supreme Court. I honestly don’t even care if a federal judicial candidate is nominated because of political patronage as long as they are a young progressive. Judge Childs is not young & not even in the top 5 in being very progressive out of Biden’s 8 black women he has nominated to the court of appeals.

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    • Spectacular news. He was in my top 3 to take senior status at the start of the administration so I’m happy to hear this. I believe he worked on briefs for Roe v Wade so I didn’t think with him being in his mid 70’s, he would stay active past the midterms. Happy Saturday

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      • Rosemary Marquez Is already in her mid 50’s so I’m hoping for somebody younger that can be on the SCOTUS list for a future vacancy. But she is solid other wise & I’m sure will get heavy consideration.

        The thread on Twitter that made the announcement threw out a couple names. David Gass seems to be born around 1962 so obviously that should disqualify him. Maria Elena Cruz Looks like she was born around 1976 but she was appointed to her seat by the Republican governor Ducey so not to sure about that.

        Justin Pidot Was who I put near the top of my list last year. I’m sure there are others I’m not familiar with.

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    • Great news! As I mentioned above, I think any circuit court judge who is thinking of taking senior status this year needs to do so immediately.

      Here was my list of possible candidates I posted last year. Some of these like the Marquez sisters are possibly too old.

      I would like to see a Native American here, both Leeds and Branch would be great choices. There is a lack of environmental attorneys, so I think Pidot would be great as well. And lastly Eunice Lee would be a fantastic choice, although I wonder if Manchin would vote no.

      Arizona:

      Elevate Rosemary Marquez, district judge and former AFPD

      Her sister Letty Marquez, AFPD

      Justin Pidot- UA law professor

      Eunice Lee- LGBT Asian UA law professor, former LGBT rights attorney

      Roopali Desai- election attorney who was legal counsel to Sinema’s Senate campaign

      Leonard Aragon- Hispanic plaintiffs attorney

      Victoria Lopez- ACLU legal director

      Ethel Branch- Navajo Nation AG

      Stacy Leeds- Native American ASU professor and former Cherokee Nation Supreme Court justice

      Erin Scharff- ASU law professor

      Laura St. John- legal director for pro-immigration group

      Shalev Roisman- UA professor

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      • @ Shawn

        In addition to Justin Pidot, both Victoria Lopez & Lee round out my top 3. I remember writing in an earlier post last year I actually thought the wrong Eunice Lee was nominated to the circuit court… Lol… But no disrespect to the NY Lee, she’s very good too.

        But a Native American circuit court judge would be good in this spot too. Between this & the Kansas vacancy I think there probably should be one.

        Besides Marquez younger sister I’m not aware of the others on your list but I’m sure they all are in or younger then there low 50’s. If so all seem good choices as well.

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  8. I just hope that the Breyer vacancy doesn’t slow down the lower court nominations, that scares me a bit…….There are at least 15 circuit openings now…..Democrats must be able to walk and chew gum here…..Cancel a recess, work a weekend or two, just get all the circuit openings filled….

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    • I’m actually less worried about Biden doing his part nominating & Schumer doing his part in confirming then I am in Durbin doing his part in setting up the hearings & subsequent votes out of committee.

      Durbin is falling behind. This pattern of not scheduling nominees for a committee vote the week after their hearing so they can be held over & voted out the next week is not good. Only having 4 nominees in some hearings is even worse. But only having the second nomination hearing this coming Tuesday in the past 45 days is inexcusable, even factoring in recess weeks. And not having Nancy Abudu at the hearing even if Judge Childs was going to still have her hearing is frankly just plain dumb. If this is what I wanted I would have just supported senator Feinstein being the chairwoman.

      Schumer can knock a half dozen or so votes out in a day & if he votes for cloture on two circuit court nominees on a Thursday, they both can be confirmed the following Monday. The SJC is where I’m starting to get worried about.

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  10. I don’t know if I believe that Biden is really looking at a wider set of possible nominees, but here we go.

    Both Sherrilyn Ifill and Anita Earls are excellent progressives. Both are also way too old to nominate to SCOTUS. Ifill should have been nominated to the 4th Circuit by Obama in 2014, while Pamela Harris should have been nominated to the DC Circuit instead.
    That said both of these would be far better than Judge J. Michelle Childs.

    “But the White House is also considering Sherrilyn Ifill, who is stepping down as president of the NAACP Legal Defense and Educational Fund, and North Carolina Supreme Court Justice Anita Earls, the source said.

    Other names include Judge Holly Thomas, recently confirmed to the California-based U.S. Court of Appeal for the 9th Circuit; Judge Wilhelmina Wright, a federal district judge in Minnesota; Nancy Abudu, who Biden recently nominated for a spot on the 11th Circuit; Arianna Freeman, nominated to the 3rd Circuit; Judge Candace Rae Jackson-Akiwumi on the 7th Circuit and Judge Tiffany Cunningham on the Federal Circuit.”

    https://www.usatoday.com/story/news/politics/2022/01/29/white-house-biden-considering-judge-childs-supreme-court/9267824002/?utm_source=feedblitz&utm_medium=FeedBlitzRss&utm_campaign=usatodaycomwashington-topstories

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    • @ Shawn

      I sent remember where I read it but I saw a White House aide saying only existing judges will be considered. But your right Sherrilyn Ifill should have been a fed judge by Obama, especially in the first two years.

      Anita Earls & Minnesota judge Wright are unfortunately too old for real consideration. Hopefully they are not really being vetted.

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  11. Durbin basically telling the White House to pick KBJ. Hope Biden listens to them instead of Clyburn

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    • She is both younger and more moderate than KBJ. David Lat’s sources suggested that she is also seen as “more intelligent” as well (Lat took a LOT of heat for saying that in his article, I didn’t think it was that big of a deal). Most progressives would rather not see her picked, but would prefer her to Judge Childs.

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      • Back in 1994 when Bill Clinton was choosing a second SCOTUS nominee, his approval ratings were falling fast the the public was turning against him. So his advisors came up with a principle for the nomination- Do No Harm. Stephen Breyer has known for being amiable, very smart, and uncontroversial. He was the first choice of few, but widely acceptable. He was confirmed with no fuss.

        Now Biden’s approval ratings have fallen. Should he also prioritize someone who’s both well-qualified and won’t generate controversy?

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      • That strategy works both ways & scares me a little. If Biden wants to do no harm that could be seen as Childs being the safest choice with senators Graham & Scott signaling they would vote with her. It’s actually smart on their part because the person from their home state is the best candidate they can get as she is one of the oldest & not a bleeding liberal, plus they get to backfill her district court seat with blue slips in play.

        I am hoping Biden sees KBJ as the nominee that does no harm since she was just confirmed last year with 3 GOP votes. You can make the case justice Kruger is in the same category even though she is the youngest of the possibilities because she has sided with the Republicans on decisions during her tenure on the California Supreme Court.

        I think KBJ is the most liberal nominee we will see have a chance getting selected. Holy Thomas has only been on the federal bench 2 weeks & we have gone over the difficulties Melissa Murray would have being confirmed on earlier post. Sheryl Ifill would have been great a decade or more ago but she is simply too old now sadly. Eunice Lee & Candice Jackson being from the home states of the majority leader & chairman of the SJC respectively certainly helps their chances but I’m not sure they truly have s chance with less then a year on the federal bench.

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      • To begin with, KBJ won’t do any harm. Kruger doesn’t either. Both of them are very strong candidates with impressive credentials and experience. But midterm elections are far more about base turnout now and less about appealing to independents. KBJ is more likely to energize the base.

        Judge Childs is not qualified for SCOTUS frankly. She has very little experience in the kind of questions that SCOTUS deals with, and being a federal district court judge in South Carolina does not deal with those kinds of cases. (in contrast, a federal district judge in DC will have experience in those kinds of cases). She would be seen for what it is, a payback to political ally. Even if she gets some GOP votes, most of the GOP will harp on the political patronage.

        I expect them to race bait as well, that Biden made a “quota” pick who is less qualified. Tucker Carlson is a bigot, so you expect that from him. But Mississippi Senator Roger Wicker, following the rhetoric white supremacist senators from yesteryear in his state, called the future Supreme Court nominee an “affirmative action” hire. It is incredibly unfair to have to deal with this kind of garbage, but unfortunately it is there.
        As LBJ did in 1967 with Thurgood Marshall, the best way to counteract this kind of garbage with the public is to select someone who has unquestionably impressive credentials.

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