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.

67 Comments

  1. I too initially thought this nominee would sail towards confirmation but after her hearing Tuesday it may be a lot closer then I originally thought. Senator Cruz grilled her on her views regarding Asian American discrimination & she repeatedly refused to answer if racial discrimination was bad when he asked her. He also questioned her on some of her writings when she went to Harvard the same time he did. By I still believe she will get at least one GOP vote in the SJC & on the floor.

    Like

    • I wish they would just answer the question even agree with the Senator. Anne Rachel Traum’s hearing was a disaster because she refused to answer Kennedy’s relatively basic question. Just agree with them and move on and not say “as a potential judge I cannot answer that question, sir.” Instead, the very painful Kennedy-Traum back and forth was clipped and put on YouTube and now has a million hits of “John Kennedy owns Biden judicial nominee” or something. Cruz, Hawley, Blackburn and Kennedy are all approaching these hearings with guns blazing and are eager to get a clip they can post on YouTube.

      I feel like the White House is not preparing them well for these hearings.

      Liked by 1 person

      • I agree with you. A basic “I don’t believe discrimination is good” is an acceptable answer. Obviously if they follow up with trying to link that answer to Biden pledging to nominate a black woman to the SCOTUS (Which I am sure they would try), then you can give the common answer of I can not get into political discussions as a nominee for a federal judgeship. That would look much better on You Tube then the answers they are giving now.

        Like

      • It makes no difference though, as those clips are exclusively shared within the right-wing ecosystem. It’s about as consequential as when Kamala Harris was able to make Kavanaugh look a bit shifty at his hearings regarding whether or not he had discussed any matters relating to presidential immunity with legal colleagues, or Al Franken pushing Amy Coney Barrett on her links to anti-LGBT groups. You get a short burst of attention and then things move on and the nominee is confirmed.

        In fact, we’ve already had analogous situations with Biden nominees. Jennifer Sung was made to squirm about a letter she signed calling Brett Kavanaugh ‘morally bankrupt’ and Holly Thomas was hauled over the coals for her work in support of trans rights. It didn’t prevent either from being confirmed.

        Like

  3. First of all, this nominee really does have a pleasingly alliterative name!

    I suspect that despite Cruz’s theatrics she’ll end up being confirmed without too much difficulty, although I doubt she’ll get a single Republican vote other than Graham’s.

    For those interested in some additional detail on the questions she faced, this Reuters article is a good start: https://www.reuters.com/legal/legalindustry/republicans-question-japanese-american-judicial-pick-book-review-2022-02-01/

    Like

    • I suspect that they have ulterior motives here, i.e. more time for fundraising with their wealthy corporate buddies instead of doing their job as a senator.

      These are two of the three worst senators in the Democratic caucus (the other one is Feinstein). None of these three should be in the Senate. Feinstein should resign, Menendez belongs in prison, and Sinema should lose a primary.

      Like

  5. Well it’s official, the SJC schedule is out for next week & no nomination hearings. It’s truly ridiculous. At least they scheduled the executive calendar vote for next Thursday so we should get the Andre Mathis group voted out. I am sure Mathis will be added to the list of the three other pending nominees that all will need to have a discharge vote. Hopefully senator Lujan is not out too long so Schumer can schedule these votes.

    Liked by 1 person

  8. I commented in the Fred Slaughter thread about how Judge J. Michelle Childs had a strongly anti-labor record and regularly represented employers who discriminated based on race and gender and were union busting. Now here is another article about how Childs was an extremely punitive on criminal justice issues as a judge and was regularly overruled by the appellate court for being too harsh.

    “Judge Childs’s repeated opposition to leniency in sentencing and alleged abuse cases brought by prisoners is notable in its own right; that she made those decisions on such dubious grounds that they were routinely overturned by higher courts indicates a commitment to tough-on-crime rulings beyond the letter of procedure.”

    https://prospect.org/justice/michelle-childs-punitive-criminal-justice-rulings-repeatedly-overturned/

    Judge J. Michelle Childs is just beyond awful. I fear that she could actually be a Blackmun or Souter in reverse. She absolutely should not be appointed to the DC Circuit even if she 40 instead of 55. As I’ve said, I will support impeachment of Biden if he appoints her, and I won’t vote for him even against Trump. This would be such a disaster of a selection that I think holding my vote in 2024 would be justified.

    Like

    • Shawn:

      Childs is an awful choice for either the DC Circuit or especially the Supreme Court……But I would still vote for Biden in 2024 (or any Democrat) because the Republican party of today is simply toooooooo dangerous……..This isn’t the GOP of a time past with nice, normal Republicans like Dwight Eisenhower, Gerald Ford, Jacob Javits, Nelson Rockefeller, etc…..The party of Lincoln has morphed into a dangerous cult that is a true threat to democracy itself…

      Liked by 2 people

      • Childs is effectively another vote for the right-wing. If Childs is picked, as far as I’m concerned, Let’s go Brandon!
        Progressives should hold their votes for any senator who confirms Childs. And I would hope the GOP impeaches Biden ASAP.

        Like

      • The issue is, when Reagan made his pledge to nominate the first women to the SCOTUS, almost all of the women on the federal bench were appointed by President Carter. Of course Reagan was not going to nominate any of them so him nominating a state mid level female judge was acceptable in 1981.

        On the other and president Biden has nominated 9 black women (His pledge vs. any women for Reagan’s pledge) himself alone. Out of those nine, I would say a solid six of them have no questions about their past progressive chops. And all of them are younger then Childs & four of the five have been confirmed by THIS senate in the past year.

        There simply is no reason for Biden to nominate Childs. This would be disastrous on so many levels.

        Liked by 2 people

      • I think she very well could be another Byron White, possibly worse. She’s that horrible, I’m certain of it. Worse than Rearden. How ever bad O’Hearn and Rearden are, they are district court nominees. On top of all of this, Childs is utterly unqualified to be on the SCOTUS, and is only in consideration due to political patronage.

        The main reason why I accept the argument that the Democrats are the lesser evil is the Supreme Court and judicial nominees. If Childs is nominated, that argument goes out the window. Progressives should either overtake the Democratic party and kick out the moderates or failing that form a third party. If it results in the GOP winning so be it.

        I don’t like Leondra Kruger, but she is another Breyer or Kagan. If she is nominated, I would grit my teeth and support her. Childs is much much worse, and I would quit my support for anyone who backs her. Frankly I’m pretty disgusted enough on Childs being nominated to the DC Circuit.

        Biden has been an awful President so far, with his only accomplishment being a GOP infrastructure bill worse than we would have gotten under Trump, and you can’t blame Manchin or the GOP for a nomination of Childs.

        Like

      • @Dequan

        Reagan considered nominating Judge Cornelia Kennedy to SCOTUS a somewhat conservative Nixon appointed district judge who was elevated to the 6th Circuit by Carter. For all of the quality judges Carter put on the bench, he also appointed several conservatives, mostly in the South. They didn’t because Judge Kennedy was joined an opinion which struck down abortion restrictions. My guess is that she would have pretty much ended up where O’Connor was.

        Like

      • Ah, I just looked judge Cornelia Kennedy up & do see you are right. Reagan & actually Ford both considered her for the SCOTUS.

        While she may have been conservative, as you mentioned Carter did overall do a great job on the judiciary. I truly wish he had won re-election like the polls suggested 3 months before the election.

        Like

      • @Dequan

        Frankly Carter had no chance of winning re-election. The polls that showed him tied or slightly up, but that was with John Anderson taking away independents, Kennedy voters, and moderate/liberal Republicans and a lot of undecideds. The undecideds really were deciding between Anderson and Reagan, Carter was not even in consideration for most of them.
        From the non-partisan lens, Carter was seen as a total disaster, both on the economy and foreign policy. It was pretty similar on how GWB was seen in 2008 (if GWB had been able to run for a third term, Obama would have beaten him by double digits).

        Like

    • These are based on prisoner lawsuits and habeas petitions, not sentences or criminal rulings–every judge sees a ton of them, and the vast majority are incredibly frivolous. This reads more to me like “sometimes makes legal mistakes,” or “some Fourth Circuit panels are very liberal,” than “out to get criminal defendants.” If she was a regular heavy sentencer, that would be very easy to discover, and they don’t have any evidence that she is.

      Like

  9. Unions are starting to push back against Childs. Finally! Criminal justice reformers need to do the same ASAP.

    ““There’s a long list to choose from,” Nelson said. “That’s why it’s great that President Biden can pass on a management-side lawyer like Childs, who has argued disdainfully against workers’ rights in favor of several other candidates who have been in the trenches with workers and have a proven record of upholding worker rights.””

    https://www.washingtonpost.com/us-policy/2022/02/02/supreme-court-labor-biden/

    Like

  10. I just emailed Demand Justice at info@demandjustice.org & asked them to come out against the Child’s nomination. If they join The People’s Parity Project against her nomination along with some union groups, there is no way Biden will nominate her.

    I implore everybody else to email Demand Justice & request they come out forcefully against Childs, especially with so many possibilities that are much better. Remember when the Colorado senators recommended Regina Rodriguez, I wrote & called Demand Justice about how disappointed I was she was the nominee & they helped push the senators to get a more progressive panel which resulted in Charlotte Sweeney for the next vacancy.

    I am telling you Biden wants to unite the base. He will NOT select Childs if people let it be known ahead of time she is not acceptable. He probably i his heart of hearts wants to nominate KBJ anyway since she was the runner up when he was vice president.

    While I don’t agree with @Shawn on everything regarding judge Childs, I 100% agree she should NOT be the nominee for the SCOTUS seat.

    Liked by 1 person

    • “I am telling you Biden wants to unite the base. He will NOT select Childs if people let it be known ahead of time she is not acceptable. He probably i his heart of hearts wants to nominate KBJ anyway since she was the runner up when he was vice president.”

      But I don’t agree with this, I suspect Biden already knows that much of the base will strongly dislike a Childs nomination and I agree that he probably wants to nominate KBJ. If Biden nominated Childs, it will not be due to ignorance but political patronage. And that will deserve his impeachment, and regardless of whatever grounds the GOP comes up with for impeachment, I would support.

      I’ve decided I will not be voting Democrat for the House again until Jim Clyburn leaves the leadership. I do agree that people should be contacting everyone (office holders and advocacy groups) they can with a strong rejection of Childs.

      Liked by 1 person

      • I think the late surge of opposition from union leaders will probably be enough to rule the day & prevent Childs from getting the nomination. I was getting a little scared for a minute there but I truly don’t believe Biden will nominate her with that kind of opposition. It shouldn’t have even come this close but at this point I just want to make sure she is not the nominee, I don’t care how or who is responsible for it.

        Liked by 1 person

      • @Dequan

        Again, I suspect Biden knows that much of the base doesn’t want Childs. That didn’t stop him from appointing her to the DC Circuit.

        I will say this, if we avoid the disaster of SCOTUS nominee Childs, Alex Sammon and the Prospect deserve an enormous amount of credit for shining the light on a horrible horrible nominee. She is worse than Jose Cabranes and Byron White as far as the worst SCOTUS candidates considered by a Democratic President.

        Like

      • You know I just thought… The GOP getting out in front saying they would support a Childs nomination is similar to what @Shawn said Democrats should have done when GW Bush nominated Harriet Myers.

        Give the president enough votes to confirm an inferior nominee. The GOP are winning even when they are in the minority. It truly makes me sick…smh

        Like

      • @Dequan

        A slight correction, I did not (and do not) think the Democrats should have said anything praising Miers before she was nominated (I think that would have backfired). What I said is that Democrats should have praised Miers *after* she was nominated and told GWB that barring any disqualifying revelations, they would provide 30 votes for Miers so that she could actually be confirmed.

        Secondly, I doubt even 10 GOP senators would actually vote for Childs. Even in the situation that enough Democrats vote no to sink the nominee, they’ll celebrate another one of Biden’s failures in his failed presidency so far, even if that means a more liberal justice. And that’s not necessarily a stupid move on their part, given that they have a 6-3 advantage already. If the Democrats had a 6-3 majority in 2005, I might have suggested a different strategy than to support Miers.

        Like

  11. VP Harris is supposed to be very involved in this selection process, and I cannot see her supporting Childs…..If she were POTUS, she would be supporting a very progressive nominee ie; Holly Thomas…

    Another thing to remember about Childs is when her District Court nomination was going thru the process, she was supported by Jim DeMint, an extremely far right senator…….Well, by the GOP standards in 2022, he’d be middle of the road now…..

    Like

  13. So far, there are three front-runners and a few in the second tier of running. Word is emerging about Ketanji Brown Jackson is that she’s had a lot of her rulings overturned by the D.C. Circuit. The first to bring it up was Tucker Carlson, whom progressives don’t consider credible, but now it’s spreading around the D.C. rumor mill. That and the claim her legal writings are said to be verbose and mediocre. Are those claims true?

    Liked by 1 person

    • I would assume KBJ is similar to the 9th circuit, overturned frequently by SCOTUS. I don’t necessarily consider that a bad thing when your running against a right wing court Hell bent on throwing away decades of precedent in which 2 seats were stolen. If anything that should raise her up on the list.

      Like

    • This feels like a pure hit job. To begin with, “lot” is not a well defined term, provide actual data with comparison to the overturning rate of other judges in that circuit.
      If it comes from *ucker Carlson, I automatically treat it as garbage. Nothing from him is worth discussing without other corroboration. If it goes from him to the DC right-wing “rumor mill”, it’s also garbage. Any biased person can say subjective stuff about her opinions.

      Also If any of this was relevant, we should have heard about it during the DC Circuit hearings. I really could care less what *ucker or right-wing legal commentators like Ed Whalen spread in the “rumor mill” unless they have actual evidence to back up what they are saying.

      Like

  14. Subject: Against Judge J. Michelle Childs

    Dear Demand Justice,

    I have followed with enthusiasm your work and advocacy, and the esteem your organization now commands in the judicial nomination space. I am a voter whose single-issue is the Federal Judiciary in general and the nomination and confirmation process specifically.

    I now write to you to express my concerns about the possible nomination of Judge Childs to Justice Breyer’s seat on the SCOTUS. Further, I write to implore you to reject her candidacy. Please read this correspondence as a rejection in the strongest possible term of Judge Childs’ elevation to the high court.

    My rejection of Judge Childs as a possible nominee is based on her substantial background as a white-collar attorney, unredeemed by her stint at the South Carolina Workers’ Compensation Commission. Her legal career before her tenure as a U.S. district court judge is coming more and more into focus and there is plenty to dislike about what we are seeing. As the public vetting continues, her record on criminal justice is not exactly prepossessing.

    If Judge Childs does not have the qualifying professional background that a Democratic President can be proud to highlight, then what does she have? A powerful political patron. What a catastrophe it would be if the president appoints someone to the Supreme Court, whose record is less than stellar, as pay back for a political favor. The Supreme Court is no longer the place for patronage appointments.

    This former management-side, anti-labor lawyer cannot meet the moment and President Joe “from Scranton” Biden should not be seriously considering her for the vacancy. Her nomination and appointment to the Supreme Court would be akin to putting Senator Kyrsten Sinema on the court where she would join the other corporatist justices.

    As a black man myself, I was very pleased when President Biden reaffirmed his intention to honor his pledge to nominate and appoint the first black female justice to the high court. As the search continues and as the President asks for the most qualified candidate, the question should answer itself: not Judge J. Michelle Childs.

    We have a deep bench of potential candidates who are young and vibrant with qualifying experience and ready to take on this important role.

    As we wait for President Biden to name his choice, let us not waste our energies trying to defend the troubling record of Judge Childs. Demand Justice must not pre-endorse her nomination and must even come out against it, for good measure. When a qualified woman is named later this month, let us fight for her swift confirmation with singular vigor.

    Thank you,

    Judicious voter

    Like

    • They confirmed two local DC judicial nominees today & will continue tomorrow. This is due to the normal process of confirming them en blanc is being blocked by senator Rick Scott. This is why I said on an earlier post all cloture votes & DC area judges should be confirmed on Fridays only. If Republicans want to break norms, then let them do so in the senate chamber instead of their normal 3-day work week. Schumer is only encouraging their bad behavior by holding these votes during normal senate time.

      Alison Nathan & the other district court judges should be given priority. Even if Leonard P. Stark is confirmed tomorrow, he doesn’t take office until the judge he replaces retires which is March 11, 2022. Plus, he is already a federal judge so he’s not losing anything by waiting to be confirmed & getting the other nominees confirmed first. They can confirm Stark a month from today & he still can’t take office yet.

      Like

      • On Thurs’ SJC mtg, if Durbin opens the mtg by saying we will hold over Judge Mathis for one more week I will SCREAM…

        And yes, Schumer should be keeping senate in Fridays and perhaps some Saturdays to so as to get more nominees confirmed

        Like

      • I will go absolutely ballistic if Mathis is held over a second week Thursday. he already missed two week he could have been put on a previous executive calendar vote as it is. Also, the three ridiculously low nominees from last week’s hearing needs to be added to this Thursday to be held over but I doubt Durbin will at the rate he’s been going.

        Also, I hope tomorrow we see a nominations hearing scheduled for eth following Tuesday. Or at worst see it this Wednesday for next week. I would call for Durbin to be removed as chairman if he does not hold a nomination hearing next week for another week.

        Like

    • I doubt it. Reports are Leondra Krueger was offered the US solicitor general position & turned it down in lieu of staying in California on the state supreme court. It appears she will only move to DC for the SCOTUS.

      I would look for Deepak Gupta, Karla Gilbride or the courts first Hispanic to be nominated.

      Like

  17. Governor Murphy’s nominee Rachel Wainer Apter to the New Jersey supreme court has still not been confirmed from last March. A second vacancy will open up on the court next week. It looks like the governor will continue to uphold the bare majority unwritten rule & appoint a Republican unfortunately…

    Maritza Berdote Byrne (Born around 1967) is a Cuban born Republican & appears to be the front runner. Lisa Miralles Walsh (48 years old) is also under consideration.

    (https://newjerseyglobe.com/governor/murphy-to-renominate-wainer-apter-to-supreme-court/)

    Also, we still have no nominee from Governor Newsome for the California supreme court.

    Like

Leave a comment