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.

92 Comments

  1. Hands down this is one of the two worst Biden nominees so far. I put Christine O’Hearn at number one because in addition to being a horrible pick from a blue state, she also couldn’t answer basic legal questions at her hearing. I will watch Jennifer Rearden ‘s hearing to see if she can answer questions better & reserve the right to move her past O’Hearn as my personal worst Biden pick to date.

    This nominee should have been rejected by the Biden administration. Senator Gillibrand should have been forced to give a new recommendation.

    Liked by 1 person

  2. Like Dequan, I think this is one of Biden’s weaker nominees, although I also think the Donziger accusations being made against Rearden are massively over-hyped. If she was involved, then that would certainly be a major black mark against her, but it doesn’t appear that she was.

    Overall, not an especially inspiring choice, but a perfectly well-qualified one and her background in civil practice will make her well-suited for SDNY’s mainly financial and white-collar crime caseload.

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    • I do think that representing Philip Morris is a questionable choice – notwithstanding the caveat that lawyers can’t always pick their clients – and I’m discomforted by Rearden’s pattern of donations, which creates the uncomfortable impression of a quid pro quo (although I strongly doubt that this is one of Gillibrand’s reasons for recommending her).

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      • Gillibrand worked with Rearden on the Phillip Morris cases and they were supposedly fairly close back then. I don’t think it’s quite quid pro quo, but more just rewarding a close friend. It is also possible that Rearden threw regular fundraisers for Gillibrand, and if that is the case this would fit under political patronage.

        Regardless of the reasons, this is an unusually awful nominee. I would not have accepted Rearden as a Democratic selection even in a deal with Trump.

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      • While we all may not necessarily agree on the order, it’s fairly universal that the 3 worst nominees by Biden so far (O’Hearn, Readon & Childs) are from solid blue states/districts. Trump nominated some Democrats but ALL were in either purple or blue states. This is not acceptable.

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      • @Dequan

        As I said, I would go further and say that Rearden would have been unacceptable even in a package deal with Trump.

        That said Childs is worse simply because she is being nominated for much more powerful courts. As bad as Rearden is, this is still a nomination to a district court (although SDNY is the second most important district court after DC).

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      • Yea there’s no question, they both are horrible picks. I’m still holding out hope that when Biden doesn’t pick Childs for SCOTUS she may decide to stay in South Carolina since this is her one & only shot to SCOTUS. I know it’s probably a pipe dream but one can hope right… Lol

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      • Not necessarily… Childs seems like someone Biden might nominate if he gets a 2nd nominee, especially if in need of Republican support.

        I would say Childs could be easily confirmed in a GOP Senate if I didn’t know better. I feel that Biden would be someone to do that; of course if the GOP takes the Senate they will flip-flop on Childs just like they flip-flopped on Merrick Garland.

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      • @Dequan

        So just as possible judges to the same seat, I would say that Rearden is the absolute worst of the Biden nominees. And I think she is also worse than every single Obama judicial nominee that was selected by a Democrat (that is not including Republicans appointed in a deal.) If we were appointing Childs to SDNY, she would not be worse than Rearden. The reason why I say the Childs appointment is the worst is solely because she is being nominated to the DC Circuit.

        The only way Childs could be willing to stay in South Carolina is if she can be convinced to accept the 4th Circuit slot and Graham can be convinced to put her there. Or if there is something awful that comes out during the vetting that makes her unsuitable for elevation anywhere.

        Liked by 1 person

      • For me it’s very possible I may end up agreeing with you on the order of the three. For now I would put O’Hearn as my worst because in addition to being a horrible nominee, she couldn’t even answer basic legal questions at her hearing.

        I will be watching both Childs & Reardon’s hearings too. I can’t imagine they will be as unqualified as O’Hearn showed she was at her hearing which is why I put her as my personal worst. But it’s not necessarily 1, 2 & 3 for me. It’s more like 1a, 1b & 1c for me.

        I disagree with you that Childs is not qualified for the DC circuit. She is a horrible nominee, particularly for the second highest court but not because she’s not qualified in my mind. I just think with her age & lack of progressive chops in her background, she is a horrible nominee.

        On the other hand after seeing O’Hearn’s hearing I simply don’t think she’s qualified to be a federal judge. Even if she was nominated by Trump in a package deal I wouldn’t vote for her if I was in the senate.

        Now as for Reardon I will with hold my judgement other then to say she shouldn’t be a pick in a blue state by a Democrat president. I only know what I’ve read & I haven’t seen her SJC questionnaire or seen her hearing yet so she may rise in my book but I doubt it. At the end I may agree with you but I need more info.

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      • @Shawn

        I agree that this is probably a case of putting up a good friend, which to be honest is arguably inevitable in politics as people go as much on who they know as what they know of the candidate’s positions.

        Definitely agree that O’Hearn is the worst. I am quite pragmatic about Biden’s nominees: as long as they’re not corrupt or egregiously unqualified, and they’re at least moderately liberal jurisprudentially, then given the likely loss of the Senate this November I say confirm as many of them as possible.

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      • @joshir73102

        Your last sentence is correct. If the GOP takes the senate they would 100% flip flop on Childs & not confirm her, nor ANY nominee to SCOTUS, regardless of if it’s replacing a Republican or Democrat. They would make Childs seem like the second coming of Thurgood Marshall… Lol

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      • @joshir73102

        Childs to SCOTUS is entirely Jim Clyburn’s doing. She wouldn’t have been on any list for SCOTUS without Clyburn pushing for it, cynically and dishonestly calling it a “non-elitist” pick.

        Personally I think Lindsey Graham was behind pushing Childs to the DC Circuit by cynically vetoing her for the 4th Circuit. I wouldn’t be surprised if Clyburn asked for a favor to do that and try to force Biden’s hand on this.

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    • Thanks for sharing this. With the Republican maneuvers in the Banking committee (which somehow caught the Dems by surprise, because of course it did) I sensed that Reps could play dirty in SJC.

      It’s painful how un-strategy Dems are. They talk up a good game about how Reps are out to destroy this or destroy that but when the Reps actually play dirty the Dems are shocked and left to only clutch their pearls.

      Favorite line: Sen Durbin: “If this is going to be a generalized effort by the Republicans to shut down the Senate, I don’t think it’s going to be very popular in the country…”
      Excuse me? They just had an insurrection against the government and are still in prime position to win control in November.

      Liked by 1 person

    • I actually doubt the GOP will do this for the SCOTUS pick, regardless of whom it is. I think that is sufficiently high profile enough to get considerable public backlash and it is a risk not worth taking given that they already have a 6-3 majority.
      If they do try this gambit it will be for some lower court nominations.

      Liked by 1 person

      • I am more worried if there were to be an unexpected SCOTUS vacancy in September or October before either the midterms or the presidential election in 2024. I want rules in place now to prevent them blocking it then. Anything can happen as we have seen when your dealing with justices in their 70’s, 80’s or with health problems. So Democrats should set the tone now, even if it’s just for FED nominees.

        Liked by 1 person

    • I don’t think Republicans will do this on a regular basis. They are objecting to Sarah Bloom Raskin, whom Republicans charged with conflict-of-interest and allegedly has made threats against industries she doesn’t favor. I’m surprised that the White House hasn’t withdrawn her nomination. Progressives tend to come down hard on financial impropriety. Perhaps it’s due to loyalty to her husband, a progressive Congressman from Maryland.

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      • I think we have to work under the assumption that the Republicans will do this more regularly if Democrats let them get away with it now. I wouldn’t withdraw her nomination for that reason more so then loyalty to her husband. Trump did not withdraw now Justice Kavanaugh & that was right before the midterms & he had a LOT more reason to withdraw him.

        Democrats have to stop cutting & running & fight. I’d rather the nomination fail on the floor by 1 or 2 votes.

        Liked by 2 people

      • Personally I think Sarah Bloom Raskin would have been an excellent Fed Chair. And her credentials are quite impressive aside from her husband, so this is not a political patronage selection under any means. Even if her husband had not been a Congressman (he wasn’t before 2016), Bloom Raskin has excellent credentials and would have been highly qualified for this position.

        As far as “threats against industries she doesn’t favor”, well that’s a bunch of BS.

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      • @joshir73102

        “If a nominee is so controversial that GOP is boycotting, we can’t guarantee that Manchin will support said nominee.”

        Not necessarily. Manchin has voted for a several nominees with no GOP votes. Manchin is usually straightforward, if he can’t support a nominee, he’ll usually say so in advance.

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  3. This is Biden’s second worst nominee behind J. Michelle Childs. Worse than Christine O’Hearn by a decent margin. A clear F.
    Let’s go Brandon for nominating this pile of shit nominee.

    I would vote no at every level on this nominee, and support the use of whatever tactic needed to block her. If the GOP provides 40 no votes on Rearden, progressives should sink this god awful nominee.

    Liked by 1 person

    • This is the type of nominee Ted Cruz & Tom Cotton would block if everything was reverse. They spoke about it at the Dale Ho SJC vote. She probably wouldn’t have even been nominated in a red state from a Republican president had Cruz & Cotton had gotten wind of it prior.

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      • Absolutely. But this is completely on Biden and Remus. As Chris Kang did in the Obama administration, you have to be able to tell the senators no. And also Jim Clyburn no.

        If they had set the standard from the beginning by saying no to Regina Rodriguez and some of the NJ nominees, I don’t think we would have gotten awful nominees like Huie and Rearden.

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      • That is true. I actually was one of the people pushing Demand Justice on several conference calls after the Regina Rodriguez nomination to force senators to have more progressives in their commissions. Thankfully the Colorado senators listened as Charlotte Sweeney was their second pick. But this type of nominee simply should not happen in a blue state, let alone bright blue state like New York.

        Liked by 1 person

    • There still seems to be three women in the running, perhaps four. Cheryl Ifill seems to be the most progressive, but she’s 60 and has never faced a confirmation hearing.

      With Ifill and Kentaji Brown Jackson, the White House can excite the progressive base, but also inflame conservatives and risk losing the moderates. With Michelle Childs, she could win over some on the other side and placate the middle, but most progressives are lukewarm about her at best. Or they can split the difference by nominating Leondra Krueger, who would likely satisfy progressives but not excite them, but also not generate much fervent opposition.

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  4. Purely for information purposes, I’m posting Alex Sammon’s latest article on J. Michelle Childs, as I know the others have been posted here previously:

    https://prospect.org/justice/michelle-childs-sentenced-man-to-12-years-for-selling-8-ounces-weed/

    As with his other two pieces, I am profoundly underwhelmed by the supposedly devastating evidence he’s assembled. The sentence sounds harsh, but the problem appears to lie with the laws on the statute book. I can completely buy that Childs is a tough sentencer as a District judge, but so was Sonia Sotomayor and her record on criminal justice issues has been consistently liberal.

    Liked by 1 person

    • The problem is not with the statute book or the laws. It is Judge J. Michelle Childs, who has proven to be a ridiculously tough and a rubber stamp for the prosecution and corporations. She has been overturned by 4th Circuit repeatedly for her punitive sentences, which clearly suggests that the issue is not the sentencing record.

      Comparison to Sotomayor as a District Judge is irrelevant, because we had a full decade of her as an appellate court judge to see what her record was. Childs has zero appellate court experience and very little other experience dealing with questions things like administrative or constitutional law, which itself makes her unqualified for SCOTUS. Frankly district courts deal far less with these matters (except the DC District court). Her expertise in Employment/Labor Law comes entirely from defending corporate interests who are being sued for racial/gender discrimination.

      Actually I think the real problem is that you are trying to find reasons to pump up Childs and to smear Alex Sammon (which you did in previous posts here). I don’t know what your agenda is, but seeing your posts on Rearden here is quite suspicious.

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      • @Shawn

        First of all, I’m a Brit. I have no connection to US politics other than as a casual observer and my interest in American legal nominations and jurisprudence is because of my background as a lawyer here in the UK – where I mainly represented workers in claims against employers, and those needing help in making claims for assistance from local government. I really haven’t got an agenda here. I studied American constitutional law as a law student, because it’s a standard part of the public law curriculum in England, and I also took comparative civil law modules on torts, contract law and standards of evidence. I’m also an Americanophile who likes and respects America’s flawed, but often admirable, constitutional traditions. No other agenda here, honestly.

        Childs isn’t really my favourite pick for Biden. My preferred nominee would be Kruger, as I’m impressed by her academic and professional accomplishments, and think that appointing a State Court judge would be a valuable addition – I think the last was Souter, no? That said, Ketanji Brown Jackson would also be an outstanding nominee and I think the Ed Whelan stuff in National Review about her supposedly poor quality writing and legal reasoning is really risible.

        But I do feel Childs deserves to be assessed in an even-handed manner and I think the way she has been spoken about, both on this webpage and in some progressive circles, has been unfair bordering on unkind. She’s not the most liberal nominee that Biden could put forward, but she’s also not some sort of reverse Souter. Her record on the bench includes endorsing same-sex marriage as a constitutional right pre-Obergefell, and striking down voter suppression measures during the 2020 election. Those hardly strike me as the actions of a determined conservative.

        I’m grumpy at Sammon because I think he over-eggs his case and consistently overstates positions in a way that eliminates a lot of the nuance in situations. I don’t think either of his previous articles about Childs really fairly represented her career. He neglected to acknowledge that she’d represented workers during her time as an attorney, and that she’d been praised by local labor union leaders for her record as a Workers’ Compensation commissioner. I also don’t think it’s particularly fair to pick on a few of the near 5,000 cases Childs heard during her time as a District Judge, and use them to try and paint her as vindictive and sloppy. She has a 1% reversal rate of her decisions after all, which is hardly a sign of ineptitude or a cavalier approach to the law.

        I respect your passion and I understand why you feel strongly about this. Let’s not be any harsher with one another than we have to be. I might have been a bit sharper with you before than was warranted, so I apologise for that. Truce?

        Liked by 1 person

      • @livesofthelaw

        I disagree with basically everything here.

        I never said that Judge Childs was a “determined conservative”. I said that she would be a reverse Souter… on par with Justice O’Connor or Kennedy. Both of them supported LGBT rights and at least sometimes supported voting rights, especially O’Connor. They were still clearly right of center as a whole. I would expect Childs to be the same.

        I will discuss her lack of qualifications in the next post. But she’s getting a fair and even-handed look here and in progressive circles. It’s just well, when a deep-dive into her record, it pretty much sucks.

        But I really strongly object to your assessment of Alex Sammon, who did a masterful job of exposing who Judge Childs truly is.

        This is what you said:
        “He neglected to acknowledge that she’d represented workers during her time as an attorney”

        This is what Sammon actually wrote:
        “Bloomberg Law has 25 cases registered in which Childs participated during her time at the firm; 23 of those involve alleged employment discrimination or other employment-related civil rights violations. Race and gender were common factors in such suits; seven such cases entailed race-based job discrimination, and another three involved sex-based job discrimination. In all but two registered instances, Childs was not representing the plaintiff but the defendant, meaning that she overwhelmingly represented employers accused of violating civil rights and gender discrimination laws in the workplace.”

        Sammon mentioned that Childs did represent workers on 2 cases out of 23. In the other 21 cases she represented management, for over 90% of the time, and that doesn’t include the cases that were settled. I think it’s quite fair to say that Childs was a management lawyer at an anti-union firm. I think it’s more than fair to categorize her record as anti-labor. A union leader in South Carolina supporting her is not evidence to the contrary. Her record on the workers compensation board is not particularly informative coming in an extremely anti-union state. Being better than average in South Carolina isn’t saying much. South Carolina Democrats in 2002 were more anti-labor than the GOP in many parts of the country.

        Here’s another comment you made about Sammon earlier:

        “Alex Sammon is a professional Biden-basher and his analysis reeks of an attempt to find some angle to knock Biden from. ”

        I haven’t seen this, as in the articles I’m reading he is praising Biden and bashing Clyburn for pushing a horrible nominee that goes against the administration’s principles.

        But if what you say is true, Sammon has been completely vindicated. President Biden has done a poor job as President so far. He’s accomplished little, has been slow to react to COVID and other issues, and his foreign policy has been an embarrassment. And not all of these failures are due to Joe Manchin or the GOP.
        Biden wasn’t in my top 5 candidates, and probably not even in my top 10. But Alex Sammon as well as I, are hoping that he does well.

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    • I might add, J. Michelle Childs is only being considered for SCOTUS because of her powerful patron. If not for Clyburn, nobody would be considering Childs for SCOTUS. That is nothing but purely disgusting. As such, I have decided that I will not vote for Democrats for the House until Clyburn is no longer in leadership.

      Another bogus argument for Childs is that she didn’t go to any of the top colleges or law schools. As if being mediocre is a good argument! I want people who have stellar academic qualifications. As far as life experience, Holly Thomas was the first in her family to go to college. She went to Stanford and Yale Law, and took that training to work for civil rights and regular people. Jennifer Sung worked as a union organizer before going to Yale Law, and then working for more than a decade representing regular people and unions.
      Going to Yale Law doesn’t suddenly make someone elitist. Becoming a corporate law firm partner on the other hand, does.

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      • @Shawn

        I do think this is unfair on Childs. Marking someone down because they didn’t got to an Ivy feels excessive, especially as none of the universities she went to were exactly academically-weak. She also went to USF on a scholarship, so her family circumstances probably influenced her choice. Holly Thomas has a lot to be proud of and she was a great pick for the Ninth Circuit, but let’s not set her against Childs here.

        I know we don’t see eye-to-eye on this, but I’m going to reiterate my view that as long as an individual is well-qualified and not ethically compromised, then agreeing to appoint them to a particular position in exchange for political support isn’t inherently corrupt. A financial quid pro quo is one thing, but this is qualitatively different.

        And Childs is well-qualified, in my opinion. She has a range of experience in law and politics, is a nationally-recognised expert on employment law, and graduated with good grades from well-regarded public universities. Robert Jackson was a ‘country-seat lawyer’ and Hugo Black a graduate of the University of Alabama law school, but both made outstanding contributions on the bench after all. Why not Childs?

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      • @livesofthelaw

        “And Childs is well-qualified, in my opinion. She has a range of experience in law and politics, is a nationally-recognised expert on employment law, and graduated with good grades from well-regarded public universities. ”

        I’d like to know what makes her qualified for the highest court in the US, because I don’t see anything. Maybe this kind of a record would be considered qualified in the UK, but it shouldn’t be here.

        Childs went to the University of South Carolina Law. US News and World Report ranks it as the 96th best law school in the country, which appears to be in the bottom half of law schools. I don’t see any evidence of academic achievement by Childs there, according to her own questionnaire (no cum laude of any sort), she wasn’t on any law review journal or any honor society other than moot court. Now part of this may be racism, I suspect that there were probably some racist professors in a Deep South state even in 1990. But there’s no evidence that Childs has a great record of academic achievement, unlike Kruger and Brown Jackson.

        This itself is not disqualifying. If Childs had other experiences to demonstrate breadth and depth in appellate cases and matters that were pertinent to the Supreme Court, then that would fine. Robert Jackson for example, was the Solicitor General for two years and the Attorney General for another year. But Childs simply doesn’t. She’s a been a district judge in South Carolina for 11 years, but has never been an appellate judge. She doesn’t seem to have much experience with administrative or constitutional law or the kinds of cases that the SCOTUS decides. Employment law is only a small part of the SCOTUS docket, it’s much more relevant at the district court level. Had Childs been elevated to the 4th Circuit sometime last decade, my opinion on this would be very different.

        And yes so I stand by my view that her primary qualification is her powerful patron Jim Clyburn. If Clyburn had retired a few years ago, nobody would seriously consider Judge Childs as a Supreme Court candidate.

        Hugo Black BTW, had zero business being on the Supreme Court. He was largely unqualified, yes he was a senator but had few other qualifications, and far worse a former Ku Klux Klan member. If I were a senator in 1937, I would have strongly opposed Black. And yes, I would have been wrong.

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      • I suppose this is a matter of subjective preference, but I don’t see anything off with USC Law School. 96th out of 202 ABA-accredited law schools isn’t poor performing in my book. On the other hand, I think you’re right that her academic background is less glittering on paper than Jackson and Kruger.

        Equally, I think we’ll have to agree to disagree about the value of serving as a District Judge. What it might lack in higher-level constitutional law, it makes up for in coal-face legal questions and seeing first hand the impact of applying the law to the facts. Sotomayor rightly spoke about the value of empathy as an element of judgement, and I think some of the profiles of Childs that I’ve read (e.g. https://www.nytimes.com/2022/02/09/us/politics/michelle-childs-supreme-court.html ) show that she understands its importance as well. And it’s not as if Childs time as a District Judge has left her unprepared to tackle constitutional issues (see her First Amendment interpretation in Cahaly v LaRosa, upheld on appeal by the Fourth Circuit).

        I also want to reiterate that the categorisation of Childs as a criminal justice hardliner is off. In Halcomb v Ravenal for example, she upheld a prisoner plaintiff’s due process rights claim regarding a security detention hearing (the Fourth Circuit overturned her in favour of the prison). In United States v Goodwin, she declined to sentence a man previously convicted of a drugs supply offence as a career substance offender.

        I agree that it’s probably true that without Clyburn’s patronage she wouldn’t have been under consideration, but a lot of Biden’s nominees from under-represented backgrounds have benefited from being picked out from the crowd by someone familiar with their work.

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      • That I agree with. I don’t know if any progressive group will openly come out against anybody who could possibly be the first black women on the SCOTUS, but if there ever was a time, I would say now is it & for her.

        But the noise of her omission on their home page should be deafening at The White House. For God’s sake even Wilhelmina Wright is on the list. She’s a district court judge even older than Childs.

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      • ” I don’t know if any progressive group will openly come out against anybody who could possibly be the first black women on the SCOTUS, but if there ever was a time, I would say now is it & for her.”

        That’s why progressive groups need to do it NOW, before Biden makes his pick. That way they can easily say it is due to Childs background as a lawyer and not her demographics.

        Liked by 1 person

      • I don’t have much information on judge Adrienne Nelson, but I think including her on the list without judge Childs just shows how horrible she will be received if she’s the nominee. I saw Clyburn put out a statement today slightly backing down basically saying he supports Childs but he will be fine if she’s not the nominee, although a little hurt. I think he might have already been notified Childs will not be selected.

        Liked by 1 person

      • @Dequan

        I sense that the tide is turning a bit against Childs, as you say, and to be honest given how long poor David Tatel has had to wait for a replacement to be nominated, I’m kind of hoping he gets relieved soon!

        Notwithstanding my defences of her elsewhere in the thread, I really don’t understand why Childs has been nominated for the DC Circuit rather than the Fourth. It’s a gimme nomination, given Graham and Scott’s support, and it would make backfilling her District seat a lot easier too.

        Liked by 1 person

      • I think so too. The tide is turning against Childs hard. I, like you feel she is qualified, just a horrible choice for SCOTUS or the DC circuit.

        The SJC needs to hold hearing each of the first two weeks back from recess with 6 nominees in each hearing to clear out all of the pending nominees (I’m not counting William Pocan unless Durbin ends blue slips for district court seats). Hopefully with the senate seeming to be in session for 5 straight weeks after this recess we can finally confirm all of the current announced non Pocan nominees before the Easter recess.

        Judge Tadel definitely deserves to start enjoying his retirement… Lol

        Liked by 2 people

      • Ron Jon withdrawing his previous support for Pocan was honestly one of the most predictable acts of rug-pulling imaginable. I doubt the Senate Democratic leadership will ditch District blue-slips though, as Graham would throw a fit and the SJC Republicans would gum up the works so effectively that the committee would grind to a halt.

        As for your proposed schedule for the SJC…from your keyboard to Durbin’s ears!

        Liked by 1 person

  5. FOUR Republicans were in Germany & not one judge confirmed this week. At the very least Schumer should have discharged the four judges advanced on a tie vote & filed for cloture for the two appeals court judges. This might be the biggest majority the Democrats will have in Biden’s first two years. No way in Hell they should have recessed yesterday. At the very least work today on a Friday with a week off coming up…smh

    (https://m.washingtontimes.com/news/2022/feb/17/gop-absences-prevent-senate-defunding-bidens-vacci/)

    Like

      • The Pennsylvania vacancies will be a package deal with probably one or two Republicans in it so I’m n no rush to get those filled. I honestly would hold off on them & hope a Democrat wins the open senate race in November then we can get all Democrats to fill those seats. If a Republican wins then you lose nothing by waiting until net year because you get the same 3 to 1 ratio.

        Honestly the following states/Districts are the vacancies I want to see have nominees for before the end of March;

        COURT OF APPEALS
        Rhode Island
        Connecticut(2)
        Pennsylvania
        Delaware
        Louisiana
        Ohio
        Illinois
        Kansas

        DISTRIT COURTS
        Massachusetts
        Puerto Rico
        New York
        Virginia
        California
        Oregon

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      • @Dequan

        I would fill four of the PA district court seats on a 3/1 ratio if Toomey doesn’t interfere with the 3 D selections. That is, as long as Toomey agrees to whomever is picked for 3 D selections in exchange for Toomey’s selection for the one seat, I would fill four of them. The last one probably has to remain vacant.

        Yes, the Democrats have a real chance of picking up Toomey’s seat. But I’d rather get three right now that have to possibly deal with a GOP Senate in 2023.

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      • It would depend on the Pennsylvania deal as to what approach is better. If Biden can either… A. Veto a Toomey pick that is too far to the right or B. Toomey has to give at least five names for each of his picks, I would go with a deal this year. If Toomey got to pick anybody he wanted for his pick, then I would wait until next year.

        Even with a GOP senate & a more conservative replacement for Toomey, you still have the same 3 to 1 ratio. A GOP senate would probably fill those seats over seats in blue states. Also, there are too many seats to fill this year that would have no GOP input. I would rather focus on those seats versus Pennsylvania & other GOP influenced picks like the Iowa seat for instance.

        On a side note, @twelfthcircuit I absolutely love your suggestion of Jamal Greene (born c. 1977) if one of the 2nd circuit seats are reverted back to New York. I actually was not familiar with him but after reading about him I actually love him as a pick.

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      • @Dequan

        I disagree with you on PA. I would be willing to give Toomey his nutjob in exchange for 3 solid young progressives like Arianna Freeman in PA. The problem with waiting for 2023 if the risk of a GOP Senate, where Toomey would have the opportunity to potentially reject some of the three that are selected by the Democrats and demand more moderate Democrats. Now if Toomey demands that right now, then hell no.

        But if Toomey is willing to give Casey and the Democrats a free hand on the 3 selections in exchange for Toomey’s nominee, I’d take that deal immediately.

        Like

      • I don’t think a 3 to 1 ratio is good enough if senator Toomey can pick anybody he wants. I would not take three Arianna Freeman’s for one 41-year-old John Eastman or Clarence Thomas. I would have to be able to have some veto authority before I accepted that deal this year, especially with a decent chance of a Democrat winning the open senate seat in 9 months, combined with the large number of other seats to fill.

        Even the worst-case scenario in November gives Biden a 3 to 1 ratio next year anyway or just leave the seats vacant. The difference is you let Mitch McConnell waste floor time next year confirming them instead of Schumer this year.

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      • A couple things.

        Toomey voted to convict Trump the second time. He’s not going to nominate a John Eastman kind of guy. His nominee will be similar to the kind of nominees he approved to the 3rd Circuit. They are far too conservative, but not Clarence Thomas type judges.

        What you miss is that in the worst case scenario, there is no way that McConnell and Co will agree to confirm three Arianna Freemans next year. So yes, you will have a 3-1 ratio, but it will be 3 moderates or older judges rather than younger progressives. So I think you have to take that deal if Toomey is willing.
        Obviously if Lamb/Fetterman win in PA and the Dems hold the Senate you can fill all five with good nominees. But that’s a huge gamble to take, and hence I would take 3 Freemans right now in exchange for a Toomey selection.

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      • I guess I don’t have as much faith in Toomey as maybe I should. What I would say is I would certainly let the process begin. If like you said, Toomey puts up reasonable conservatives, I would agree that a 3 to 1 ratio is better than taking a gamble on the election results. And of course, that’s if the 3 Democrats has no veto power from Toomey. But if we got a John Eastman type then I would revert back to my earlier statement.

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  6. For the 3rd Circuit seat in Delaware, I fully expect Tamika Montgomery-Reeves of the DE Supreme Court to be the nominee for that seat, with magistrate judge Chrisopher Burke being tapped to replace Leonard Stark for the district court seat.
    Hopefully we won’t have long to find out.

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      • It will be interesting to see how Cabranes’s replacement will be named given that it was originally a NY seat before he moved to CT.
        Jesse Furman could be his replacement and while he might not be as progressive as some folks like, he would be well to the left of Cabranes on most issues and would make the 2nd Circuit a moderate/liberal court.

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      • Given the Second Circuit’s intellectual reputation, I think one of Biden’s picks should be an academic and Cabranes’ seat would be well-suited for that. If the seat is regarded as a CT seat Cristina Rodriguez would be a great nominee. However, someone I would love to see nominated (apart from Melissa Murray) is Jamal Greene, who, of course, is a New Yorker.

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      • I said in an earlier post my two picks for the second circuit would be Cristina Rodriguez & CT justice Raheem Mullins. Omar Williams would be a good substitute for Mullins but not sure they would upgrade him from the district court so quickly.

        I am very interested to see if both the 2nd & 9th circuit vacancies stay in CT & California respectively or will they be reverted back to New York & Washington state. I predicted they will stay in CT & CA but if I’m wrong we still should get two stellar nominees from NY & WA.

        Like

      • @Dequan

        Strongly disagree with Raheem Mullins. Mullins is a 2016 style selection and has zero progressive credentials. There’s absolutely no need to appoint him now, and I would give his potential appointment a D/F grade depending on how his record has been as a judge. If he is a criminal justice hardliner like J. Michelle Childs and how he was as a prosecutor, then hell no, this is an F.
        And given the selections so far, I don’t think someone like Mullins will be appointed.

        I do agree that some compromise between CT/NY will be found and we will have a confirmed judge
        My position on the WA/CA dispute on McKeown’s seat continues to be that there will be no judge confirmed for this seat until Dianne Feinstein leaves the Senate or the GOP takes over the Senate or Presidency. I do not see a situation where we will get a great nominee from either WA or CA this year.

        @Zack

        Furman is also unacceptable and unlikely. Look at the three that have already been appointed and compare that to Furman. He is not likely to be selected. And quite frankly I doubt any white male is in contention here unless they have strong progressive credentials.

        Like

      • @Shawn

        There will DEFINITELY be a confirmed 9th circuit replacement this year (Barring any change in the senate composition). I think it will be a California nominee, but I may end up being wrong on that. But I have no doubt I will be right that a nominee will be confirmed. There’s simply no way in a 50/50 senate that they will let intra-party squabbling over what state a seat should be in, when both states have two Democrat senators, will stop the seat form being filled. I actually think the seat will be filled by mid-September at the latest… Lol

        As for justice Mullins, there are more progressive possibilities, but I would give him a B- as a pick. And he would be replacing judge Cabranes so he would move the court to the left. I wouldn’t put him in the same sentence as judge Child’s, but I would be fine with any number of other possible nominees as well.

        Liked by 1 person

      • I’ll throw out a couple other possible darkhorses for Delaware.

        Tieffa Harper- a federal public defender

        Christopher Howland- A fairly progressive AUSA who is a chapter leader of the American Constitution Society. He is also LGBT and appears to be born in 1980.

        Like

      • Tieffa Harper (born c. 1976) & Christopher Howland both sound good too. There’s currently a district & court of appeals seat open & if another Federal Cricut seat opens up (Which is very possible with the ages of the judges), the Trump appointed Delaware district court judge (She’s a Democrat that was selected as part of a package deal) could be considered opening up a third Delaware seat.

        By the way, I’m surprised we have not gotten any American Constitution Society nominees yet. I understand why we haven’t gotten any Planned Parenthood nominees (Although I still would have nominated 1 or 2 just to test the waters) but can’t explain why the ACS hasn’t gotten any love for the federal bench yet by Biden. I believe he & Russ Feingold were pretty close when they were in the senate together.

        Like

      • @Dequan

        Actually, we just did get a ACS nominee. Stephanie Davis was a ACS chapter leader before being appointed by Trump as a part of a deal. It was a big reason why I gave her a C rather than a lower grade (along with the fact that she was Barbara McQuade’s deputy in the US Atty’s office, McQuade is quite progressive.)

        Like

      • Ah, this is my first-time hearing Stephanie Davis was a member of the ACS but I just went back & read her district court bio on this site & see it there. Well then, my grade for her increases because I had given her a lower mark due to her age. Thanks for the info, I was unaware of that.

        Liked by 1 person

  7. Just throwing this out there re: Cabranes’ seat. It is absolutely, uncontrovertibly, statutorily a NY seat. This CA2 seat is assigned to NY by law. Cabranes’ move doesn’t change that. Otherwise, nothing would stop peripatetic judges from crossing state lines so that when they retire their seat would be considered as belonging to the state they moved to.

    Liked by 1 person

    • Rosemary Pooler’s duty station was Syracuse. Alison Nathan (with an NYC duty station) has been nominated for her seat. Does anything think Upstate NY (be it Syracuse, Albany, Buffalo, or Rochester) is obligated to have at least one 2nd Circuit seat? Lauryn Gouldin (Syracuse Law Professor) could be a good pick if so.

      Like

      • @Ethan

        My answer would be no. The Trump administration put a stop to a lot of norms & duty stations was one of them. I honestly am happy they ended that norm. It doesn’t make sense that a president is bound to pick a nominee from a certain city if there’s somebody else in another part of the state they want to pick. Honestly here’s nothing saying a president has to pick a nominee that lives in a certain state. The only requirement is the nominee lives in the circuit.

        So I would hope if one of the CT seats are moved back to NY, that the nominee is another young progressive from the NYC area. As stated before Melissa Murray would be my personal favorite but Jamal Greene mentioned earlier in this post would be a phenomenal option as well.

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  8. One other potential wrinkle in Cabranes’s seat might be that his retirement might depend on picking one of his clerk’s like Jesse Furman to replace him, ala what Robert King in WV wanted.
    Hope it won’t come to that.

    Liked by 1 person

    • If Cabranes refuses to retire if Furman is not selected, then I would tell him what he could do to himself. The same way that message was communicated to Robert King. A judge shouldn’t be allowed to pick their successor using a form of political patronage.

      Like

      • @Zack

        I absolutely agree with that, judges should not be allowed to recind senior status. I’m not sure what to think about the leaving upon confirmation thing. On one hand I think the judge should specify a departure date. OTOH, if confirmations are slow, then it could be very difficult to do so and not leave an opening on the bench.

        I also think there should be a 20 year limit before a circuit court judge is automatically given senior status (and opening a vacancy on that circuit) and all circuit court judges over 80 should be given automatic senior status unless they have served less than 10 years (in which case they can finish the 10 year term). If a judge wants to keep hearing a full load for their entire life, that’s fine. But their participation on an en banc panel should be limited to certain number of years.

        Like

      • Nah, I think it’s a bad idea to disallow judges from rescinding senior status once they announce. First, this would heavily delay announcements as judges would not announce until they are absolutely certain that they want to go senior.

        I like that a lot of judges (especially liberals) are waiting for their successor as we know that the Senate majority is held by a thread. The 4th circuit had a vacancy that lasted 16 years and at one point nearly half of its seats were vacant. Other courts have similarly have had large numbers of vacancies. This could also give the GOP a temporary majority on a Democratic-majority court and let a Republican-appointed chief judge rig en banc cases similar to how Boyce F. Martin (6th Cir.) did in the early 2000s when a few conservatives went senior and their successors took years to confirm.

        Without the option to rescind, it’s also a lot riskier to take senior status upon the confirmation of a successor. If the Senate flips before their successor can be confirmed, then they would likely be doomed to having a successor of the opposite party.

        Liked by 1 person

      • I have to say that I agree with Shawn here. Judges should not be picking their successors; their allegiance is to the justice system, not their former clerks or personal judicial preferences. If you want to go, go. Don’t try and micro-manage your departure from the bench.

        Like

  9. It’s more common than you think:
    “During the Trump administration, Judge Michael Kanne of the Seventh Circuit decided not to retire after learning his former clerk, Indiana Solicitor General Tom Fisher, wouldn’t be his replacement…” — https://news.bloomberglaw.com/us-law-week/fourth-circuit-judge-rescinds-plans-to-give-up-active-role

    I don’t agree with you @Zack. While I think it’s awful for judges to rescind their retirement in protest of not getting their preferred successor, I do like that it’s an option, let’s say, on the presidential level. God forbid, if a death or resignation of a senator of the “wrong” state were to throw the US Senate to the Republican and a Republican were to win in 2024, I’d want Justice Breyer to retain the right to rescind his retirement (not that he’s the sort that would do this, though).

    Liked by 1 person

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