Month: February 2022

Nusrat Choudhury – Nominee to the U.S. District Court for the Eastern District of New York

Nominated to the federal bench in January, Choudhury has already attracted attention for being the first female Muslim federal judicial nominee. Aside from the historic significance, Choudhury also makes a notable nominee for a significant paper trail of litigation and statements on hotly contested issues.

Background

Born in 1976 in a Bangladeshi American family, Choudhury earned a B.A. from Columbia University in 1998, an M.P.A. from Princeton in 2006 and a J.D. from Yale Law School in 2006. She then clerked for Judge Denise Cote on the U.S. District Court for the Southern District of New York and then for Judge Barrington Daniels Parker on the U.S. Court of Appeals for the Second Circuit.

After her clerkships, Choudhury joined the ACLU, staying with the organization until the present day. In her time there, Choudhury has transitioned through the National Security Project and the Racial Justice Program before her current role as Legal Director of the American Civil Liberties Union of Illinois.

History of the Seat

Choudhury has been nominated for a seat on the U.S. District Court for the Eastern District of New York. This seat opened when Joseph Bianco was elevated to the Second Circuit on May 17, 2019. On February 12, 2020, the Trump Administration nominated Saritha Komatireddy to fill this vacancy, but she never received a hearing before the Senate Judiciary Committee.

On September 1, 2021, Choudhury was recommended for a nomination by Senate Majority Leader Chuck Schumer to the White House. She was nominated on January 19, 2022.

Legal Experience

Choudhury has spent virtually her entire legal career at the American Civil Liberties Union in various capacities, and has had the opportunity to work on a number of prominent civil rights cases. We have summarized some of these matters below.

National Security Project

Early in her career at the ACLU, Choudhury worked primarily on national security cases. For example, she represented Amir Mohamed Meshal, who was detained in Ethiopia and allegedly interrogated by the FBI on allegations of supporting Islamic militants. Beth DeFalco, NJ Man Sues FBI over his Detention in Ethiopia, A.P., Nov. 10, 2009. Additionally and notably, Choudhury argued before the Ninth Circuit in a challenge to the Transportation Safety Administration’s No-Fly List. Nigel Duara, Federal Appeals Court in Ore. Takes Up No-Fly Case, A.P., May 11, 2012. The Ninth Circuit ultimately sided with Choudhury, allowing the suit to move forward. See Latif v. Holder, 686 F.3d 1122 (9th Cir. 2012).

Racial Justice Program

Choudhury also worked at the ACLU’s Racial Justice Program, where she worked on an agreement with the Boston Police Department to track racial profiling. Jess Bidgood, Boston Police Focus on Blacks in Disproportionate Numbers, Study Shows, N.Y. Times, Oct. 9, 2014. She also worked on an ACLU report that concluded that black drivers in Florida are stopped disproportionately by police. See Lizette Alvarez, Florida Said to Ticket More Blacks on Seatbelts, N.Y. Times, Jan. 28, 2016.

ACLU of Illinois

Since 2020, Choudhury has served as the Legal Director of the ACLU of Illinois. In this role, Choudhury has been supportive of Chicago Mayor Lori Lightfoot’s efforts to reform policing. See A.D. Quig, Lori’s Lieutenants Hitting the Exit; Brain Drain Threatens Push for Change in Policing, Crain’s Chicago Business, May 3, 2021.

Statements and Writings

In her role at the ACLU, Choudhury has spoken out frequently in speeches as well as media statements. For example, Choudhury has spoken out against the No-Fly List, arguing that the process of placing individuals on the list lacks transparency. See Chris Hawley, John Curran, Terror Suspects Seek to Clear Names, A.P., Mar. 21, 2011. Choudhury has also been critical of the privatization of parole and probation. See Tina Rosenberg, Out of Debtors’ Prison, With Law as the Key, N.Y. Times Blogs, Mar. 27, 2015. In another article, Choudhury has spoken on the “racial wealth gap” which can lead to fines and parking tickets having more severe consequences for minorities. See Paul Kiel, Debt and the Racial Wealth Gap, N.Y. Times, Jan. 3, 2016.

In an interview discussing her new role as the Legal Director of the ACLU of Illinois, Choudhury stated, in a quote that is likely to be frequently repeated: “Our job and my purpose in life is to make sure we use the law as a tool for social justice.” See A.D. Quig, The Takeway; Nusrat Jahan Choudhury, Crain’s Chicago Business, Mar. 23, 2020.

Furthermore, as a law clerk to Judge Cote, Choudhury authored an article that was critical of efforts by Western governments to “liberate” Muslim women by banning religious articles of clothing and headscarves, noting that this can infringe on religious freedom and the autonomy of the women in question, as well as another article discussing women’s rights in the Afghani Constitution. See Nusrat Choudhury, From the Stasi Commission to the European Court of Human Rights: L’Affaire du Foulard and the Challenge of Protecting the Rights of Muslim Girls, 16 Colum. J. Gender & L. 199 (2007); Nusrat Choudhury, Constrained Spaces for Islamic Feminism: Women’s Rights and the 2004 Constitution of Afghanistan, 19 Yale L.J. & Feminism 155 (2007).

Overall Assessment

Given her experience with civil rights law and her time at the ACLU, Choudhury’s nomination was already likely to attract strong opposition. However, her self-description as having a life purpose to effectuate social justice through the law is likely to be used to argue that Choudhury is an activist, rather than a jurist. In defense, Choudhury can cite the context of the quote, made in her role as an advocate, not as a judge, while critics may counter that it would be hard for Choudhury to set aside her “purpose in life” when she takes the bench. Ultimately, Choudhury’s nomination is likely to be hotly contested, potentially even coming down to the vote of Vice President Kamala Harris.

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Arianna Freeman – Nominee to the U.S. Court of Appeals for the Third Circuit

After Judiciary Chairman Chuck Grassley’s reversal on blue slips in the Trump Administration, he processed and confirmed three Trump nominees to the Third Circuit over the objections of their home state senators. With the shoe now on the other foot, Arianna Freeman looks strongly favored to join the Third Circuit, even without the support of her home-state senator.

Background

Arianna J. Freeman received her B.A. with Honors from Swarthmore College in 2001 and J.D. from Yale Law School in 2007. Freeman then clerked for Judges C. Darnell Jones and James Giles on the U.S. District Court for the Eastern District of Pennsylvania.

After her clerkships, Freeman joined the Federal Community Defender Office for the Eastern District of Philadelphia. Freeman has stayed with the office since then, currently serving as managing attorney.

History of the Seat

Freeman has been nominated for a Pennsylvania seat on the U.S. Court of Appeals for the Third Circuit, which will be vacated by Judge Theodore McKee upon the confirmation of the successor.

Legal Experience

Freeman has spent her entire legal career as an indigent defender, serving in various capacities with the Federal Community Defender’s Office, including her current role as managing director.

Among the matter she handled with the office, Freeman persuaded a district judge to grant habeas relief to a state prisoner, noting that the prisoner had suffered ineffective assistance of counsel when his counsel failed to raise on appeal a claim that his judge had improperly closed the courtroom for his trial. See Tucker v. Werenowicz, 98 F. Supp. 3d 760 (E.D. Pa. 2015). However, the ruling was subsequently overturned by the Third Circuit Court of Appeals. See Tucker v. Superintendent Graterford SCI, 677 Fed. Appx. 768 (3d Cir. 2017).

Freeman also argued a number of appeals before the Third Circuit in her role. See, e.g., Norris v. Brooks, 794 F.3d 401 (3d Cir. 2015). In one notable case, Freeman persuaded the Third Circuit to grant habeas relief to a defendant whose Confrontation Rights were violated when the trial court admitted a co-defendant’s confession, which the prosecution improperly acknowledged implicated the defendant. See Brown v. Sci, 834 F.3d 506 (3d Cir. 2016).

Outside the habeas context, Freeman unsuccessfully argued before the Third Circuit that the district court acted correctly in finding a defendant to not be a “career offender” under the Armed Career Criminal Act. See United States v. Ramos, 892 F.3d 599 (3d Cir. 2018).

Overall Assessment

Despite her youth, Freeman has established herself as one of the foremost advocates for the indigent in eastern Pennsylvania. Additionally, Freeman does not have a paper trail of controversial stances that might emperil Democratic support for her nomination. As such, Freeman is strongly favored for confirmation to the Third Circuit.

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Judge J. Michelle Childs – Nominee to the U.S. Court of Appeals for the D.C. Circuit

Judge Juliana Michelle Childs has spent approximately fifteen years on the state and federal bench in South Carolina. While she was a frontrunner for a Fourth Circuit vacancy in her home state, Childs is currently nominated to a seat on the powerful D.C. Circuit.

Background

Julianna Michelle Childs was born in Detroit on March 24, 1966. Childs graduated from the University of South Florida in 1988 and from the University of South Carolina Law School in 1991. After graduating, Childs joined the Columbia office of Nexsen Pruet, LLC. where she became the firm’s first African American partner.

In 2000, Childs was named by Gov. Jim Hodges to be deputy director of the labor division of the South Carolina Department of Labor, Licensing, & Regulations. In 2002, Childs was named to the South Carolina Workers’ Compensation Commission.

In 2006, Childs was selected to be a Circuit Court judge on the Richland County bench. In 2010, Childs was nominated by President Obama and confirmed by the U.S. Senate to the U.S. District Court for the District of South Carolina, where she currently serves.

History of the Seat

Childs has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit. The seat will open at the move to senior status of Judge David Tatel.

Political Activity

Childs has a limited political history, largely consisting of a single donation to Al Gore’s presidential campaign in 1999.

Legal Career

Childs started her legal career at the firm of Nexsen Pruet before moving on to the South Carolina Department of Labor and the South Carolina Workers’ Compensation Commission.

Childs worked at Nexsen Pruet between 1992 and 2000, including serving as the firm’s first African American Partner. At the firm, Childs worked on employment, business litigation, and family law. She also tried over twenty cases before a jury. Among these trials, Childs represented Bamberg County in a suit brought by the estate of an inmate at the Bamberg County Detention Center after he committed suicide in his cell. See Stanley v. Bamberg County, 1997-CP-05-19. After a hung jury, the case settled. On the federal side, Childs represented L&L Wings, Inc. in a Title VII discrimination lawsuit, which ended with a jury verdict for the plaintiffs on one claim of retaliation and claims of sexual harassment, with the defendants winning other claims. See Harris and Prasky v. L&L Wings, Inc., 132 F.3d 978 (4th Cir. 1997).

Childs served on the South Carolina Workers’ Compensation Commission after her appointment in 2002 to 2006. In that role, Childs adjudicated issues of compensation, disability, benefits, and workplace injury. During her tenure, the Commission voted to eliminate the positions of Court Reporters to reduce expenditures, and the reporters filed suit. See Morris v. South Carolina Workers’ Compensation Commission et al., No. 26201 (S.C. Aug. 21, 2006). While a trial judge sided with the reporters, the South Carolina Supreme Court unanimously reversed. See id.

Jurisprudence

Since her unanimous confirmation in 2010, Childs has served as a federal district judge on the U.S. District Court for the District of South Carolina. In addition, Childs was a state court judge between 2006 and 2010. Some of the cases she has presided over are summarized below.

State Bench

Childs served on the Richland County Circuit Court between 2006 and 2010, during which time she presided over both criminal and civil matters in a court of general jurisdiction. During her tenure, Childs presided over approximately 42 jury trials and 8 bench trials. For example, Childs presided over a $3.5 million verdict for a plaintiff struck by a motor vehicle operator due to the alleged negligence of the South Carolina Department of Transportation. See Cohen v. S.C. Dep’t of Trans., 2005-CP-27-188. In another notable decisions on the state bench, Childs dismissed a re-indictment based on allegations of molestation by the victim’s stepfather. See State v. Gerald Williamson, 2006-CP-40-2803. Childs found that a ten year delay in the indictment of the case unduly prejudiced the Defendant and justified the dismissal.

Childs also sat as Acting Justice for the South Carolina Supreme Court on occasion, including in one case where she reversed a circuit court’s failure to sustain a Batson challenge after a juror was struck due to objections based on their dreadlocks. See McCrea v. Gheraibeh, 669 S.E.2d 333 (S.C. 2008).

Election Law

Childs has made multiple key rulings on issues of election law. In 2011, Childs rejected a challenge to South Carolina’s open primary law brought by the Greenville County Republican Party, ruling that the open primary did not violate the First or Fourteenth Amendments. See Greenville Cnty. Repub. Party Exec. Comm. v. South Carolina , 824 F. Supp. 2d 655 (D.S.C. 2011).

In another notable decision, Childs struck down South Carolina’s absentee ballot witness requirements, finding the requirements to violate voters’ rights given the Covid-19 pandemic. However, Childs’ ruling was overturned by the U.S. Supreme Court, which reinstated the requirement. See Adam Liptak, Supreme Court Revives Witness Requirement for South Carolina Absentee Ballots, N.Y. Times, Oct. 6, 2020.

Sitting by Designation on Fourth Circuit

During her time on the district court, Childs sat by designation numerous times on the Fourth Circuit. Among her decisions in so sitting, Childs joined the court in reversing a grant of summary judgment to defendants in a Title VII action, noting that the denial of a better severance package could constitute an adverse employment action under Title VII. See Gerner v. Cnty. of Chesterfield, 674 F.3d 264 (4th Cir. 2012). In another opinion, Childs joined a unanimous court in affirming a life imprisonment sentence for a defendant convicted of drug trafficking. U.S. v. Edmonds, 679 F.3d 169 (4th Cir. 2012).

Writings and Statements

Throughout her life and career, Childs has frequently commented on the law and her role as judge. For example, as a state court judge, Childs authored one of a collection of letters published by the ABA Commission on Women in the Profession, in which she discussed her rise to become a judge. See Judge J. Michelle Childs, The Letter and the Spirit, 48 Judges’ Journal 23 (Fall 2009). In the piece, Childs notes that a judges is a “public citizen who bears a special responsibility for the quality of our justice system.” and adds: “[Judges] are charged with the spirit as well as the letter of the law in orderly decision making.” Id. at 26.

Overall Assessment

As an appellate nominee, Childs is hard to challenge as well qualified, with more than a decade on the federal bench and three decades of legal experience. However, the key backdrop to Childs’ nomination is the Supreme Court vacancy left by Justice Stephen Breyer. It is an open secret that Childs is being considered for the Supreme Court (although sources vary on how strongly) and that she is the preferred candidate of GOP Sen. Lindsey Graham, one of the few Senate Republicans to consistently support Biden judicial nominees.

Regardless of whether Childs is nominated for the high court or remains pending for the D.C. Circuit, her nomination is likely to face the same fate, a comfortable confirmation with a handful of GOP senators in support.

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Jennifer Rearden – Nominee to the U.S. District Court for the Southern District of New York

In 2020, upon the recommendation of Democratic Senator Kirsten Gillibrand, the Trump Administration nominated Jennifer Rearden to the U.S. District Court for the Southern District of New York.  Rearden was, however, not confirmed before the end of the Administration.  She now has a second chance after being renominated by Biden.

Background

50-year-old Jennifer Hutchison Rearden received her B.A. from Yale University in 1992 and a J.D. in 1996 from New York University School of Law.  After law school, Hutchison joined Davis Polk & Wardwell, before moving to the Atlanta office of King & Spalding.  Since 2003, Rearden has been a Partner with Gibson, Dunn & Crutcher in New York City.

History of the Seat

Rearden has been nominated to the vacancy on the U.S. District Court for the Southern District of New York vacated on October 25, 2018 by Judge Richard Sullivan’s elevation to the U.S. Court of Appeals for the Second Circuit.  Rearden was previously nominated for this vacancy by President Trump on February 12, 2020 but was not confirmed by the Senate. Rearden was renominated by Biden on January 19, 2022.

Political Activity

Rearden has been an active political donor, having made over thirty political contributions over the last thirteen years.[1]  While Rearden has given to politicians of both parties (her Republican donees include Rudolph Giuliani and Chris Christie), most of her donations have been to Democrats.[2]  She has contributed particularly to female Democratic senators and senate candidates, giving them almost $12000 in the 2016 cycle.[3]

Legal Career

Rearden has spent her entire career in private practice, working at various big law firms as a commercial litigator.  Specifically, Rearden has handled a number of complex commercial cases, including matters related to tax, contract, and compliance matters.[4]

Among her more prominent cases, Rearden represented Philip Morris Inc. and other tobacco companies in a suit against the City of New York challenging the City’s regulation of tobacco prices.[5]  She also represented Home Depot in an Arizona suit involving tax deductions.[6]

Notably, Rearden argued in New York State Court a suit seeking Worker’s Compensation benefits for an employee’s domestic partner (through a civil union).[7]  The Appellate Division of the New York Supreme Court found, in a divided opinion, that statutory provisions supporting worker’s compensation benefits for surviving spouses did not cover partners in a civil union.[8]

Rearden’s nomination has drawn criticism from Rep. Rashida Tlaib for her alleged role in the prosecution against Steven Donziger.[9]  Donziger, an environmental lawyer, had obtained a $9.5 billion judgment against Chevron for environmental damages in Ecuador, leading to Chevron pulling their assets from that country and suing Donziger in New York for racketeering.[10]  The latter suit eventually led to criminal contempt charges when Donziger refused to follow a court order to surrender his electronic devices, arguing that they contained confidential client information.[11]  While Tlaib’s statement, a tweet by Donziger, and the related article suggests that Rearden was among the Gibson attorneys who sued Donziger, a search of the case documents does not show Rearden’s name.  The key opinion instead identifies five other Gibson attorneys.  Additionally, there appears to be no evidence on the case’s PACER record of Rearden entering an appearance in the case.

Writings

Rearden has been a fairly prolific author, frequently writing articles on various legal issues, including issues of civil practice, procedure, and substantive law.

For example, Rearden has written on the Columbia Pictures v. Bunnell ruling in the Central District of California, which held that random access memory (RAM) could be discoverable material that needed to be preserved in preparation for litigation.[12]  She has similarly expounded on a similar decision by Judge Shira Scheindlin on production of metadata during discovery.[13] 

Overall Assessment

While Rearden was not confirmed under Trump, she has a strong chance under the current Administration.  While she is likely to draw the requisite opposition from the right that all Biden nominees are drawing, Rearden may also see some liberal opposition based on her time at Gibson Dunn and her perceived role in the Donziger prosecution.

[2] See id.

[3] Id.

[5] See Nat’l Ass’n of Tobacco Outlets v. City of New York, 27 F. Supp. 3d 415 (S.D.N.Y. 2014).

[6] Home Depot USA, Inc. v. Ariz. Dep’t of Rev., 230 Ariz. 498 (Ariz. Ct. App. Div. 1 2012).

[7] Matter of Langan v. State Farm Fire & Cas., 48 A.D.3d 76 (N.Y. Sup. App. Div. 2007).

[8] See id. at 78-79.

[9] Zack Budryk, Tlaib Blasts Biden Judicial Nominee Whose Firm Sued Environmental Lawyer, The Hill, Jan. 21, 2022, https://thehill.com/policy/defense/590819-tlaib-blasts-biden-judicial-nominee-whose-firm-sued-environmental-lawyer. 

[10] See id. 

[11] See id. 

[12] Jennifer H. Rearden and Farrah Pepper, Oh No, Ephemeral Data, N.Y. Law Journal, Mar. 22, 2010, https://www.gibsondunn.com/wp-content/uploads/documents/publications/Rearden-Pepper-OhNoEphemeralData.pdf.  

[13] Jennifer Rearden, Farrah Pepper, and Adam Jantzi, Scheindlin’s ‘Day Laborer’ Decision: Much Ado About Metadata, Law Technology News, Feb. 22, 2011, https://www.gibsondunn.com/wp-content/uploads/documents/publications/Rearden-%20Pepper-%20Scheindlin%27s-Day-Laborer%27-Decision-LTN-2-22-11.pdf.

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Jennifer Rochon – Nominee to the U.S. District Court for the Southern District of New York

New York’s Democratic Senators share a split in recommending candidates for the federal bench, with the more junior Kirsten Gillibrand getting one pick for every three or four that the more senior Chuck Schumer gets. After nominating four Schumer picks to New York District Courts, the White House has chosen Gillibrand selection Jennifer Rochon.

Background

Born in 1970 in Michigan, Jennifer Louise Rochon received her B.A. from the University of Michigan in 1992 and, after volunteering with the Peace Corps, a J.D. in 1997 from New York University School of Law. After law school, Rochon clerked for Judge Maryanne Trump Barry on the U.S. Court of Appeals for the Third Circuit, before joining Kramer Levin Naftalis & Frankel, where she became a Partner in 2006. Since 2013, Rochon has been general counsel for Girl Scouts of the USA.

History of the Seat

Rochon has been nominated to the vacancy on the U.S. District Court for the Southern District of New York vacated on May 1, 2021 by Judge George Daniels’ move to senior status. Rochon was recommended for the vacancy by Gillibrand and was nominated on December 15, 2021.

Political Activity

Rochon has made occasional political donations throughout her career, including donations to Biden, Reps. Antonio Delgado, Anthony Brindisi, and Max Rose.

Legal Career

Rochon spent the first thirteen years of her post-clerkship career at Kramer Levin Naftalis & Frankel, where she served both as associate and as a litigation partner. Early in her career, she represented immigration organizations as amici in constitutional challenges to the Immigration and Nationality Act. See Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001); Phu Chan Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002); Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002).

Among her more prominent cases, Rochon represented a dental floss manufacturer in a false advertising suit against Pfizer for claims that its mouthwash was as effective as flossing, securing a preliminary injunction against the challenged advertising. See McNeil-PPC, Inc. v. Pfizer, Inc., 351 F. Supp. 2d 226 (S.D.N.Y. 2005).

In 2013, Rochon, a third generation girl scout herself, was appointed to be the first general counsel for the Girl Scouts of America, where she currently serves.

Overall Assessment

Coming from an in-house environment, Rochon would come to the bench with a slightly different background that most federal judges. Additionally, her affiliation with the Girl Scouts, an organization that is widely praised across the political spectrum, is also likely to garner Rochon bipartisan support for confirmation.

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Judge Sherilyn Peace Garnett – Nominee to the U.S. District Court for the Central District of California

U.S. District Judge Barry Moskowitz has had luck placing his clerks under the Biden Administration. After Judge Jinsook Ohta, Judge Sherilyn Garnett has now been nominated to the federal bench.

Background

The 52 year old Garnett attended the University of California Riverside, getting a B.A. with honors in 1991, She then received a J.D. from Harvard Law School in 1995.

After law school, Garnett joined the Chicago office of Altheimer & Gray as an associate before clerking for Judge Barry Moskowitz on the U.S. District Court for the Southern District of California. After a year at the Los Angeles Office of Arnold & Porter, Garnett became a federal prosecutor with the U.S. Attorney’s Office for the Central District of California.

In 2014, Governor Jerry Brown of California appointed Garnett to the Los Angeles County Superior Court. Garnett currently serves on the Court.

History of the Seat

Garnett has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on November 4, 2018 by Judge Manuel Real, who the last judge appointed by President Lyndon B. Johnson still serving in active status when he left the bench.

On August 28, 2019, President Trump nominated Rick Richmond, a longtime leader in the Federalist Society, to fill this vacancy. However, Richmond never received a hearing before the Senate Judiciary Committee, and the seat was left open at the end of the Trump Administration.

Legal Experience

Garnett spent the vast majority of her pre-bench legal career as a federal prosecutor. Among the matters she handled, Garnett prosecuted Dana Christian Welch, who was sentenced to 30 months of federal prison for shooting lasers into the cockpits of commercial airliners about to land, causing “flash blindness” in the pilots. See Press Release, Federal Bureau of Investigation, Los Angeles Field Office, Orange County Man Who Fired Lasers at Commercial Aircraft Sentenced to 2.5 Years in Federal Prison, Nov. 3, 2009. Garnett also prosecuted Billy Cottrell, a former Caltech graduate student convicted of participating in a conspiracy to firebomb over 130 vehicles as an act of ecoterrorism. See Nathan McIntire, Judge Orders Former Caltech Grad Student to Serve At Least 18 More Months in Federal Prison, Pasadena Star News, Nov. 16, 2009.

Judicial Experience

Since 2014, Garnett has served as a judge on the Los Angeles County Superior Court. In this role, Garnett presides over trial court matters in criminal, civil, family, and other state law matters.

Statements

While Garnett has been fairly reticent throughout her career, she was quoted in a number of articles during a 2013 government shutdown caused by a conflict between the Obama Administration and Congressional Republicans. See, e.g., Ian Lovett, Unable to Take Care of Business in L.A., N.Y. Times Blogs, Oct. 1, 2013. In the articles, Garnett was sharply critical of Congress for the burden they placed on government employees, calling their lack of action “really stupid.” See id.

Overall Assessment

As a state judge with a background as a prosecutor, Garnett could attract bipartisan support for confirmation. While some lawmakers may raise eyebrows with her willingness to call their actions “stupid”, it is unlikely that those comments will derail an otherwise smooth confirmation.

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Judge Sunshine Sykes – Nominee to the U.S. District Court for the Central District of California

The first native american judge on the California state bench, Judge Sunshine Sykes looks likely to break barriers on the federal bench as well.

Background

Born on the Navajo Nation Reservation in Arizona in 1974, Sykes attended Stanford University, getting a B.A. in 1997. She then received a J.D. from Stanford Law School in 2001.

After law school, Sykes joined California Indian Legal Services and then spent two years at the Southwest Justice Center and the California Department of Social Services. In 2005, Sykes joined the County Counsel’s Office in Riverside County.

In 2013, Governor Jerry Brown of California appointed Sykes to the Riverside County Superior Court. She currently serves on the Court.

History of the Seat

Sykes has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on March 3, 2020 by Judge James Selna. The Trump Administration did not nominate a candidate for this vacancy before the end of the Presidency.

Legal Experience

Sykes started her career working for California Indian Legal Services. She then spent two years with the Southwest Justice Center and the California Department of Social Services, where she served as an attorney for juvenile offenders. See County Attorney Appointed to Judicial Seat, City News Service, Dec. 5, 2013. See, e.g., Leland L. v. Superior Ct. of Riverside, 2004 Cal. App. Unpub. LEXIS 2871 (Mar. 30, 2004).

From 2005 to 2013, Sykes worked as Deputy County Counsel in Riverside County, working on writing ordinances, vetting documents, and representing the county in judicial proceedings.

During her time as County Counsel, Sykes saw her name in a discrimination suit, where the plaintiff alleged that his colleague responsible for the discrimination developed a dislike for him because he protested against an adulterous relationship she was engaged in with Sykes’ then-boyfriend. See Rodriguez v. Cal. Rural Legal Assistance, Inc., Case No. ED CV 13-958-JFW, 2014 WL 3900234 (C.D. Cal. June 30, 2014). The suit was ultimately dismissed by U.S. District Judge John Walter, after U.S. Magistrate Judge Sheri Pym found the affidavits involving the extra-marital relationship to be irrelevant. See id.

Judicial Experience

Since 2013, Sykes has served as a judge on the Riverside County Superior Court. In this role, Sykes presides over trial court matters in criminal, civil, family, and other state law matters. At the time of her appointment, Sykes was the first native american state court judge in California. See County Attorney Appointed to Judicial Seat, City News Service, Dec. 5, 2013.

Among her notable cases from the bench, Sykes presided over a suit against Monster Beverage Corp. by a man who accused the beverage of causing his heart attack. See Mike Curley, Appeals Court Upholds Verdict in Monster Heart Attack Case, Law 360, Mar. 26, 2021. Sykes bifurcated the trial between causation and damages, and the jury unanimously found for Monster, a verdict upheld on appeal. See id. Sykes also presided over a lawsuit brought by the families of three girls allegedly molested at Liberty Elementary School. See School District Settles Suit Arising From Alleged Sexual Abuse of Students, City News Service, Dec. 3, 2018. The suit ended in a $6.2 million settlement.

Statements

Sykes has spoken out on the need for greater diversity in the legal profession and, in particular, the prejudice she has faced for being Native American. See, e.g., Diverse Judges Share Paths to Bench, Advise Young Lawyers, U.S. Official News, Feb. 9, 2016. In a 2016 panel with the American Bar Association (moderated by U.S. District Judge J. Michelle Childs), Sykes noted that her re-election appointment had indicated that she was not qualified to be a judge because she was Native American. See id.

Overall Assessment

As a state judge with nearly a decade of experience and little controversy during her tenure, Sykes should have little trouble retaining the Democratic support she would need for confirmation.

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Judge Kenly Kato – Nominee to the U.S. District Court for the Central District of California

On October 8, 2017, Judge Beverly Reid O’Connell, a federal judge in Los Angeles, unexpectedly and tragically passed away after collapsing in a middle of a speech to the California State Bar. Her seat still sits vacant to this day, with the nomination of U.S. Magistrate Judge Kenly Kato being the Biden Administration’s first attempt to fill it.

Background

Kenly Kiya Kato got her B.A. summa cum laude from the University of California Los Angeles in 1993, and a J.D. cum laude from Harvard Law School in 1996. After graduating, Kato clerked for Judge Robert Takasugi on the U.S. District Court for the Central District of California before joining the federal public defender’s office in Los Angeles.

In 2003, Kato returned to private practice, and worked as a solo practitioner for ten years.

In 2014, Kato was selected as a U.S. Magistrate Judge for the U.S. District Court for the Central District of California

History of the Seat

Kato has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on October 8, 2017 by the untimely death of Judge Beverly Reid O’Connell.

On November 21, 2019, the Trump Administration nominated U.S. Magistrate Judge Steve Kim, a colleague’s of Kato. However, Kim never received a hearing before the Senate Judiciary Committee and his nomination expired at the end of the Trump Administration.

Legal Experience

Kato started her career as a federal public defender, representing indigent defendants in the U.S. District Court for the Central District of California. Among her clients, Kato defended Steven and Philip Alexander, brothers who allegedly flashed white power signals and harassed a white woman walking with her black fiance and biracial sons. See David Houston, Hate Crimes, City News Service, July 13, 1999. She also represented Desmond Abraham, a cruise ship worker accused of sexually assaulting two female passengers, when prosecutors declined to proceed to trial on the charges due to a lack of evidence. See Matt Krasnowski, Sexual Assault Charges Dropped Against Cruise Ship Workers, Copley News Service, May 23, 2000.

Kato also represented clients on appeal, successfully persuading the Ninth Circuit to order the dismissal of charges against her client on the grounds that the trial judge erred in ordering a mistrial and that her client’s Double Jeopardy rights would be violated by a retrial. United States v. Bonas, 344 F.3d 945 (9th Cir. 2003).

Jurisprudence

Since 2014, Kato has served as a U.S. Magistrate Judge in Los Angeles. In this role, she presides over settlement, preliminary hearings, bail, and any cases where the parties consent to her jurisdiction. Among the matters she has handled as a magistrate judge, Kato recommended that an inmate’s civil rights claim for violations of privacy be dismissed, noting that the inmate had failed to establish that the violative conduct alleged rose to the level of a constitutional violation. See Morris v. CDCR, 2017 U.S. Dist. LEXIS 71473 (C.D. Cal. Mar. 13, 2017).

In a benefits case, the Ninth Circuit affirmed Kato’s ruling remanding the case back to the Administrative Law Judge after finding error instead of awarding benefits to the petitioner. See Brandon v. Saul, 821 F. App’x 857 (9th Cir. 2020).

Political Activity

Kim has a few political contributions to her name, including a $1000 contribution to the Kerry for President campaign in 2004.

Statements and Writings

As a law student, Kato coauthored a review discussing the political and cultural status of Asian Americans. See Perry S. Chen and Kenly Kiya Kato, The State of Asian America: Activism and Resistance in the 1990s, 30 Harv. C.R.-C.L. L. Rev. 279 (Winter 1995). In the paper, Kato discusses the essays from the book “The State of Asian America” and notes that the essays reinforce the need for the Asian American community to self-advocate without falling into pre-existing stereotypes imposed by the political right and left. See id.

Overall Assessment

Judge Kato’s career threads the needle between the more unconventional nominees sought by the White House and the more traditional candidates picked by California’s senators. As such, Kato is likely to see a comfortable confirmation.

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