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.

123 Comments

  1. I would have liked to see her nomination switched to the Illinois 7th circuit vacant seat, particularly since it’s almost March & we still have a nominee for that seat. I expect an even better nominee since we have waited so long. It will be tough to find a better nominee then this but perhaps senator Durbin will make it happen.

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  2. Let’s hope that the 21st is the very latest the hearings will start. Both Schumer and Durbin have been talking about wrapping this up before Easter but Schumer’s talk is cheap when it comes to forcing senators to stay in town for votes. I see him being even less forceful given that the senate will have been in session for a whole six weeks (gasp!). But maybe it’s just my being a usual pessimist.

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      • Very good point @Shawn. But I just don’t see any president realistically doing it. I think Biden would go with Jennifer Sung from the circuit court over Dale Ho on the district court. Not that she is a problem because she is great. I just would like to have to solid AAPI options on the circuit court.

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      • If 4th Circuit Judge James Wynn were to take senior status, I think that NC Solicitor General (and former clerk to Souter and Ginsburg) Ryan Park (1983) would be among the two most likely replacements. If nominated, he would then be a prime AAPI candidate for elevation to SCOTUS. The other contender for a 4th Circuit seat in NC is Christopher Brook (1979), former NC Court of Appeals Judge who also served as Legal Director of the ACLU of NC. Slightly older but a more progressive record than Park.

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      • @Ethan

        Both of them would be great. There are also other excellent choices there, like Allison Riggs who like Brook is from public universities (not that it should matter). Also there is the current ACLU director Kristi Graunke and several attorneys from SELC.

        Wynn is a pretty good judge, but he needs to announce that he will take senior status pretty much now.

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      • Judge Wynn should definitely assume senior status soon, particularly in light of the fantastic names you have been dropping here (my favorite would be Alisson Riggs, tbh). However, I can understand that he enjoys being an active Circuit Judge, given it took over ten years (!) to finally place him on the Fourth Circuit.

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    • There is a reason for this. Before the last few years, candidates like Arianna Freeman would have never been seriously considered for any judgeships. TBH, I really don’t think Freeman or other nominees ever though they would be judges 5 years ago. Same for Choudhury, I think most public interest attorneys assumed that they were never were going to be seriously considered for judicial nominations, and they were ok with that. It is only in the past few years that there has been a push to put attorneys like Choudhury and Freeman on the bench.

      And the result of this is going to be to change the incentives for law students and young lawyers. Many professors at top law schools made it clear to leading liberal students, don’t be a public interest lawyer if you want to be a government attorney or a federal judge. Keep a low profile about your views and become a Big Law partner or a AUSA.

      Whatever I think of Biden otherwise, his performance on judges has been well above average for this particular reason, he is putting different kinds of people on the bench. Unfortunately it is strongly marred by the selection of a horrible unqualified nominee to the DC Circuit, and by refusing to nominate some bad district court nominees.

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  10. I agree with others about Dale Ho but there wasn’t any vacancies on the 2nd Circuit for him to go to unlike Myrna Perez or Alison Nathan got pushed aside.
    I do agree that he could go to SCOTUS down the line, even if he doesn’t make it onto a Circuit court.

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      • As much as I believe both remaining 2nd court seats will stay in Connecticut, I would love nothing more if one went to Dale Ho or even Jamal Greene. And yes I think for the few bad nominees we complain about, Biden has done a stellar job overall with the judiciary. Especially considering there is a 50/50 senate. The stars have aligned in a way to help him out with blue slips gone for circuit nominees & the left finally focused on judges after 4 years of Trump. But regardless of the luck of the draw, I think Biden deserves a lot of credit. I for one am happy he is president.

        On another note, I am still surprised the National Urban League wrote in a letter of support for Jennifer Reardon to the SJC. I will be watching tomorrow’s hearing very closely. I am torn on if she is as bad as I initially thought.

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      • “On another note, I am still surprised the National Urban League wrote in a letter of support for Jennifer Reardon to the SJC. I will be watching tomorrow’s hearing very closely. I am torn on if she is as bad as I initially thought.”

        Rearden isn’t as bad, she is worse than you originally thought. This bogus support reflects more on the National Urban League than it does on Rearden. Jennifer Rearden is the worst nominee that Biden or Obama has put up, if you just consider the nominee. (J. Michelle Childs was a worse selection because it was to the DC Circuit).

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      • I’ve heard various things about how much Rearden was involved in the Donziger case, but Sens. Ed Markey and Sheldon Whitehouse have voiced support for Donziger. So if we find that Rearden had significant involvement in the sham prosecution of Donziger, I’m sure Markey and Whitehouse (the latter of whom is on the Judiciary Committee) would know and would maybe consider sinking Rearden

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    • KBJ was the front runner yes, but Biden had already caved to Clyburn and Graham regarding Childs once. So we were more that right to be sweating bullets. In fact, without Childs’ center-right pro-corporate and pro-prosecutor record coming out thanks in part to Alex Sammon’s reporting, I think Childs would have been the nominee.

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      • If the North Carolina seat on the 4th circuit became vacant, Christopher Brook (1979) is probably my number 1 seed. But Ryan Park (1983) would definitely be a great pick too & as @Ethan said, instantly put him in the SCOTUS discussion for the first AAPI justice.

        Kristi Graunke (c. 1976) would be great too. In addition to being the ACLU director, she was Senior Supervising Attorney of the Immigrant Justice Project at the Southern Poverty Law Center.

        As for Biden probably picking Childs if not for all of the push back, I don’t believe that to be necessarily true. While I completely disagree with him folding to put her on the DC circuit, the SCOTUS is a totally different ball game. I just see no way VP Harris, Ron Klein, Dana Remus & Louisa Terrell would let him pick Childs. Perhaps he would have made a strong case for her, but I expect there was a “Janie Shores” moment where it was shut down, albeit she shouldn’t have even made it that far in my opinion.

        Finally, I truly hope I’m missing something when it comes to Jennifer Rearden. For senator Gillibrand & Schumer to back her & now the National Urban League going out of their way to back her as well, I feel there must be something I’m missing. I will probably watch tomorrow’s SJC nominations hearing closer than any of the previous ones held under Biden to date.

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      • @Dequan

        What you are missing is that Jennifer Rearden is Gillibrand’s close friend. Gillibrand wants to put her on the bench in the same way that Clyburn wanted to put Childs on SCOTUS, regardless of her record or views. It’s worth noting that Gillibrand and Rearden supposedly became close friend working on defending tobacco companies in the 1990s.

        She’s already decided on Rearden, and is basically bullying everyone else to accept her. So the National Urban League is simply following Gillibrand’s request without taking a good look at her own record. This is exactly why I’m so against political patronage in judicial selection.

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      • Don’t get me wrong, I get that Gillibrand & Reardon are good friends. But if the National Urban League would put their name on the line by going out of their way to submit that support letter, then I have a REAL problem with the organization.

        I’m affiliating Demand Justice & when they initially supported David Estiudillo I immediately wrote an email & we spoke about his nomination in two different conference calls. They explained to me the reasons behind their support for him & while I didn’t overall agree, I did have a much better understanding as to why they gave their endorsement.

        The National Urban League has been around much longer then Demand Justice. I just can’t see them putting their representation on the line like this without some reason behind it other then trying to please senator Gillibrand. I may be wrong but it would be utterly stupid on their part.

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      • @Dequan

        I did not know that Demand Justice supported David Estudillo. That’s a black mark on them, although it doesn’t erase all the good work they are doing.

        BTW, why did Demand Justice support a Republican like Estudillo?

        I’m sure that Gillibrand’s staff sweet talked the Urban League about the positives of Rearden’s pro bono side. Obviously the Urban League did not do a thorough research here.

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      • Yes, however in their defense, Demand Justice sent out their support within 24 hours of the nomination & they did so along with the other Washington state judge & the third nominee that was announced that same day.

        They stated his years of work on immigration as well as being appointed by a Democrat governor known for being a progressive as the reason they supported him. They had not heard anything regarding his work with the Republican party & to be fair, other than the assessment of him here on The Vetting Room, I have not been able to find anything regarding that either.

        It does not change my opinion that there were much better candidates, even Latino candidates from Washington state. But it did shed some light on their support.

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      • @Dequan
        “They stated his years of work on immigration as well as being appointed by a Democrat governor known for being a progressive as the reason they supported him. ”

        TBH, this seems awfully lazy. It’s possible that Inslee may have appointed him as a deal, or more likely, realized that no Democrat was going to win an election in Grant County, so might as well appoint an acceptable Republican.
        There are several public defenders who are conservatives too. People need to do their homework.

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      • Absolutely @Shawn. My only thing regarding Estudillo is I have not been able to find any relationship between him & the Republican Party other than on this site. After the first conference call with Demand Justice, I went to look for the material to get them to rescind their endorsement but couldn’t find any. This site only notates he went to some of their events. He could have attended some but doesn’t necessarily mean he is a Republican, similar to Jennifer Nou in Illinois attending The Federalist Society events & being featured on their home page.

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      • @Dequan

        Those are two entirely different situations. David Estudillo attended a GOP event, which generally means that you want to be affiliated with that party. Federalist Society events usually have one or more liberals on basically every single panel to debate the issue. Going to a Fed Society event does not automatically make you a conservative.

        This is Prof. John Rappaport’s Fed Society page, do you think he is a conservative?

        https://fedsoc.org/contributors/john-rappaport

        The Fed Society has put this new disclaimer on their site:

        “A person listed as a contributor has spoken or otherwise participated in Federalist Society events, publications, or multimedia presentations. A person’s appearance on this list does not imply any other endorsement or relationship between the person and the Federalist Society. In most cases, the biographical information on a person’s “contributor” page is provided directly by the person, and the Federalist Society does not edit or otherwise endorse that information. The Federalist Society takes no position on particular legal or public policy issues. All expressions of opinion by a contributor are those of the contributor.”

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      • Attending a Republican event & a Federalist Society event in itself is different but the similarities between the two cases is what I was pointing out. In both Nou & Estudillo’s case, I can’t find anything else that links them to anything close to the Republican Party or conservative causes

        Apparently judges in Washington state have to run for their seats so I can very much see why somebody running, even a liberal would attend a Republican event. You have to win votes do you want to talk to everybody. I don’t hold that against him any more then I would hold Nou speaking at a Federalist Society event against her.

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      • @Dequan

        Except there is nothing that suggests that David Estudillo is a liberal or Democrat either, he never attended a Democratic event while he did go to a GOP event. At least Jennifer Nou is the student chapter advisor for ACS.

        From the vetting

        “Outside of the judicial context, in 2018, Estudillo attended the Grant County Republican Party’s annual Lincoln Day Dinner/Fundraiser Saturday alongside U.S. Rep. Dan Newhouse and other Republican leaders.”

        Attending that *fundraiser* is certainly disqualifying. There is no two ways about this.

        “Had the fight not happened, Estudillo, with ties to the local Republican Party, and fairly conservative rulings, but having been appointed by the Democratic Governor, could have been a consensus candidate that the Administration and Senators could have agreed to. ”

        Also he has been pretty conservative on the bench in Washington state.

        This was just a bad job of vetting by Demand Justice.

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      • Oh yea, that’s why I said I ultimately still disagreed with endorsing Estudillo & felt there were much better candidates, even if you just take into account Latinos.

        I disagree with you that what the article states is disqualifying though. Not having information that he is a liberal doesn’t mean he doesn’t deserve a yes vote for confirmation, even in a blue state. But I do agree there were much better options, no question about that.

        I removed Estudillo off my list of no votes if I were a senator after reviewing his record further. I would have held my nose & voted yes similar to some of the other nominees that there were much better options for.

        I would have voted no out right for O’Hearn & as of right now Childs for the DC circuit (Yes if she was switched to the 4th circuit) & no on Reardon unless I find some currently unknown information out about her that would explain why the National Urban League & senators Marjory & Whitehouse is endorsing her.

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      • For the record, I have made the following political donations over the past year. Two to Demand Justice, one to Alliance for Justice & one to Republican Liz Cheney. If the fundraiser Estudillo attended were for Liz Cheney type Republicans then that would actually raise my assessment of him & I would have enthusiastically supported him. And trust me, I’m no conservative or Republican… Lol

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      • @Dequan

        Not having a progressive record of some sort is disqualifying IMO in a blue state under a Dem President and Senate.

        “senators Marjory & Whitehouse is endorsing her.”

        Senatorial courtesy. They are sufficiently on good terms with Gillibrand that they will support her awful nominee. None of this is actually on the merit of the nominee, which is basically zero.
        The only state where I would tolerate a nominee like Rearden and Childs is West Virginia.

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  13. Biden & company already had access to all of Childs’s rulings.
    I get not being happy with her being nominated to the D.C. Circuit but there is nothing out there to suggest she was ever the front runner at any point and the fears some folks had were overblown.

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    • Again that’s BS. Even if they had her rulings, they were snookered by Jim Clyburn into putting her on the DC Circuit. If Clyburn could also gaslight labor and progressive interest groups regarding Childs’ record and say “trust me on this”, Childs would have been nominated. Clyburn was successful in convincing strongly pro-labor senator Sherrod Brown that Childs was ok.

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  14. 1st Circuit Judge Sandra Lynch is taking senior status which will give Biden a 3rd pick on this court.
    It might seem like this is just a Democrat replacing another Democrat but whomever Biden picks is likely to be to the left of Lynch on several criminal justice issues so this is a big deal.
    I wonder who the nominee will be?

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      • Bessie Dewar would be fantastic. I don’t know if she wants to be a judge or if she has political ambitions but if the former, she would definitely be a great option.

        Andrew Manuel Crespo would be my personal favorite, but I honestly would rather see him on the DC circuit. That would solve multiple problems such as the first Hispanic on that court (Putting him on the first circuit puts two Hispanic men on a six-person court), Crespo would be the youngest member of that court by one year & it would add a solid LGBT option for SCOTUS consideration for years if Dewar was nominated to the first circuit. The current Biden LGBT circuit court nominees will be too old in a second term with Beth Robinson (1965), Alison Nathan (1972) & I am not sure of Eunice C. Lee status but if she is LGBT then she was born in 1970.

        And now with senator Padila out along with Feinstein & Lujan, it just angers me even more thinking about how many weeks the senate high tailed out of town on a Thursday afternoon when all 50 Democrats were healthy & in town. Absent some unanimous consent agreements, Schumer better get his act together once the band is all back together.

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      • @Dequan

        Dewar has never been a politician (unlike say Baraki Sellers). Solicitor General is usually more a legal position not a political one (unlike Attorney General).

        I agree that Crespo should be on the DC Circuit.

        It’s the Arizona Eunice Lee that is LGBT, not the NY one that has become a judge.

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    • There seems to be an early consensus here that Bessie Dewar is the frontrunner for that seat. But there is a huge pool to draw from, given that this is a Massachusetts seat, plenty of progressives around there. Given the First Circuit’s intellectual reputation, Biden could tap someone from HLS, including Professor Crespo (who, of course, would also be a superb fit for the DC Circuit), or a FPD from Boston.

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      • Let’s hope the circuit court seat is filled better then the district court seats have been filled in Massachusetts. The first one was filled by a good nominee but one in her mid 50’s. There’s three other vacancies including one that has been vacant since before Biden took office & another that has been vacant over 8 months. For God sakes Elizabeth Warren & Ed Markey are two of the most progressive senators we have & even they can’t fill seats? Smh

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      • While I agree with everybody about the slow pace of the floor votes, my main concern is the pace of the SJC. Schumer can knock votes for every judge out in a week even with GOP obstruction. I don’t think we ever got an answer as to what the Democrats can do if Republicans boycott in the SJC.

        Between that, Durbin holding hearings with only 3 nominees, then not even bringing them up for a vote the following week to be held over & senator Feinstein’s committee attendance even before the unfortunate passing of her husband, the SJC committee gives me much more heart burn then the slow pace of floor votes.

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    • What I meant to say in my previous post is that with the sad passing of Feinstein’s husband, I don’t expect her to be gone as much.
      When Lujan gets back, there needs to be a clearing out of all the nominees awaiting floor votes and Biden needs to get back to nominations ASAP.

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      • I agree. I would add in the meantime, Schumer needs to cleat out votes for all non-judicial nominees that will easily get more than a few Republican votes. That way mostly all that is left is judges once all 50 Democrats are back. He did a good job getting started tonight as they confirmed a handful of nominees.

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  18. For Thurs committee vote, senator can vote by proxy unless it results in 11-11 vote correct?…..So if there’s a nominee no GOP senator supports, all Democrats have to be in attendance, but if 1-2 GOP senators vote AYE for a nominee, then proxy votes would be permitted by democrats…..Do I have that right?

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    • SJC members can vote by proxy but there has to be a quorum in order to conduct the vote. So if one Democrat senator is missing then you would need two Republicans present for a quorum. Both California senators appear to be out this week so hopefully no shenanigans by the Republicans.

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      • A federal court in Pennsylvania currently has more judicial vacancies without a pending nomination than any other district in the country. And one of those vacancies has been lingering for more than three years.

        Now, solidly into the second year of President Joe Biden’s presidency, an election is looming that may jeopardize Democrats’ filibuster-proof majority in the Senate, potentially causing additional complications and delays for the president’s judicial nominees. But attorneys and court watchers say they are still hopeful the process is moving smoothly behind the scenes and that the vacancies will be filled before any potential problems for the courts arise.

        As it stands, Pennsylvania has six judicial vacancies, five of which are in the U.S. District Court for the Eastern District of Pennsylvania, with the other pending in the Middle District.

        So far, no nominees have been proposed for any of the district courts.

        In Pennsylvania, the process for filling a judicial vacancy is a clandestine affair. According to court watchers and some formerly involved in the process, the initial step typically involves bipartisan bodies of local advisers working at the behest of the state’s senators who do the initial vetting and then pass along those insights to the lawmakers. While any formal nominations must come from the president, according to observers, having this initial local input is key to ensuring a smooth nomination and confirmation process, without worries that a home-state senator will voice opposition by withholding a so-called “blue slip.”

        While court watchers say they are confident that process is underway, some acknowledge that Pennsylvania appears to be in an unusual situation.

        “I cannot remember a time when there were five openings in one of the districts,” Kline & Specter attorney Thomas Kline, who formerly headed the senators’ advisory body for Eastern District nominees, said. “But these deals have been made in the hardest and the easiest of times.”

        Underpinning their optimism, court watchers noted that U.S. Sens. Bob Casey, D-Pennsylvania, and Pat Toomey, R-Pennsylvania, have a long history of working together to select successful nominees so that court vacancies don’t persist.

        But, over the past few years, the federal judiciary has increasingly found itself at the center of pitched political battles like never before, and both the Biden and Trump administrations have also placed the judiciary front and center to their campaign promises and policy agendas. And with Toomey looking to leave his post at the end of the year, some court watchers are becoming wary.

        Specifically, some said they worry that Biden’s stated agenda of improving the racial, gender and professional diversity of the federal judiciary might clash with the makeup of candidates Toomey is likely to support. There has been an increase in public defenders and civil rights attorneys being nominated to the bench, and Biden has followed through on his promise to nominate the first Black woman to the U.S. Supreme Court with his recent nomination of Circuit Judge Ketanji Brown Jackson.

        So far, Toomey has voiced some opposition to Biden’s priorities, especially on the issue of racial diversity, including recently telling Bloomberg that Biden “has elevated race and sex as the most important criteria, and I wish he wouldn’t disqualify everybody in America who doesn’t meet that criteria.”

        Kadida Kenner of The New Pennsylvania Project, a nonprofit pushing to expand voter registration for underrepresented communities, said she is hopeful the pragmatic relationship between Casey and Toomey will continue. But she also noted Toomey’s ultimately successful efforts in 2016 to block former President Barack Obama’s nomination of Rebecca Ross Haywood, who would have become the first Black woman on the U.S. Court of Appeals for the Third Circuit.

        In light of that history, Kenner said she and other grassroots organizations ”will be keeping an eye on Senator Toomey to make sure he honors his commitment to fill these vacancies with open-minded Constitutionalists, so we can all live in a representative democracy.”

        In January, Biden nominated Arianna Freeman, a top lawyer in the Eastern District’s federal defenders office, to fill a Third Circuit vacancy. If confirmed she will become the first Black woman on that court. While Casey has offered support for Freeman, some court watchers took note that Toomey did not issue a press release supporting the nomination. According to The Philadelphia Inquirer, an aide for Toomey said his office was consulted, “but our input was rejected.”

        “In this moment I’m hopeful their relationship continues, but what I do have concern about is this Third Circuit vacancy. We already know where Senator Toomey stands about having a Black woman for U.S. Supreme Court, so we hope that doesn’t carry over to the Third Circuit,” Kenner said. ”We want him to honor what he always tells us, which is that he and Senator Casey work together to fill vacancies.”

        On Feb. 25, following Biden’s nomination of Jackson to to serve on the U.S. Supreme Court, Toomey issued a statement saying he looked forward to meeting with and vetting the nominee’s record.

        “Only the most qualified jurists who will diligently serve as neutral umpires of the law—not as unelected legislators with preferred policy outcomes—merit confirmation to serve as guardians of the Constitution and arbiters of our laws on the Supreme Court,” Toomey said in the statement.

        Along with worries about clashing agendas, there are also a few factors pointing to why Pennsylvania may not be at the top of Biden’s list for judicial nominations.

        First, none of Pennsylvania’s three districts are on the list of federal courts experiencing judicial emergencies. With 16 lengthy vacancies, California tops that list, followed by New York. That is largely due to the fact that only two of the vacancies—Judges Lawrence Stengel and John Jones—are due for retirements. Four of the vacancies are due to the Judges Petrese Tucker, Cynthia Rufe, Darnell Jones and Timothy Savage taking senior status. And, according to litigators, those judges remain very active on the bench.

        Also, according to reports detailing lingering civil case loads, Pennsylvania’s districts have not seen significant upticks in recent years.

        However, a more significant factor could be Biden’s apparent desire to quickly fill as many judicial vacancies as possible. At the end of last year, Reuters reported that Biden finished his first year with the most confirmations of any president since Ronald Regan. According to the American Constitution Society, 46 of Biden’s picks had been confirmed as of Feb. 24.

        Moving so quickly, court watchers say, requires strategy, which could mean Biden is focusing on filling vacancies in states where his nominations will encounter the least resistance. Specifically, that means states with two Democratic senators. And the numbers appear to bare that out.

        According to Russell Wheeler of the Brookings Institution, who has studied Biden’s nominations, in states where the senators are split between the parties, vacancies on average last for 328 days. In states with two Republican senators the average wait is slightly longer at 343 days. But in states with two Democratic senators, the average wait is much shorter: 194 days.

        “I would assume that’s where they will put the most emphasis. But that won’t help litigants in Pennsylvania who are out of luck because they don’t have judges in place,” Wheeler said.

        Aside from a recent slate of nominations in Ohio, Wheeler said, there have been few similar instances where senators from states with split party affiliation are seeing nominations. And there have also been some unusual signs of trouble, such as the recent decision by Sen. Ron Johnson, R-Wisconsin, to reverse course and oppose a Biden nominee that the senator had initially jointly recommended with his Democratic counterpart.

        “The question is, are they trying to work with Toomey to get something done? [Sen. Dick] Durbin [chair of the judiciary committee] said he will respect home state senators, but he won’t let them stall indefinitely,” Wheeler said.

        With so many openings in Pennsylvania, observers note that the Biden administration has an opportunity to significantly change the makeup of the courts.

        More broadly, Lena Zwarensteyn, a senior director at The Leadership Conference on Civil and Human Rights, said the Biden administration and Senate leaders have done a “fantastic” job filling vacancies. But she said, in some instances, she has seen more pushback from Republican senators than she would expect given the qualification level of the nominees.

        “I’m not too worried at the moment, but having lived through many years, certainly years of the Obama administration, we’re very aware of what’s possible,” she said.

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  21. Sad to say but I don’t see the situation with the E. D of PA getting better given that Toomey is likely to once again be rejected when Biden names someone else to the other 3rd Circuit PA vacancy, which will make the 3rd Circuit evenly split between D and Republican nominees.
    Mind you, it was okay for Bob Casey to be ignored on blue slips but Toomey getting a taste of his own medicine appears to be too much for him.
    What a joke.

    Liked by 2 people

  23. Not that I care about their ratings, but on top of being in her 60’s, the ABA gave Evelyn Padin a Qualified rating (Well qualified is their top rating). Interesting, even the other pending New Jersey nominee Georgette Castner got a qualified rating at well.

    Neither J. Michelle Childs nor Nancy Abudu have been rated yet which probably explains why tomorrow’s hearing has Arianna J. Freeman & Stephanie Davis instead of them even though they were nominated later.

    (https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/webratingchart-117.pdf)

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  24. You know both Arianna J. Freeman & Stephanie Davis will get attacked tomorrow but I also expect Robert Huie to be called out as well despite his record as a prosecutor due to being a member of Jones Day’s Diversity, Inclusion & Advancement Committee.
    Won’t have long to find out.

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  25. Back to the topic of Choudhury, is anyone concerned that she might be the first nominee to not get confirmed? The article accurately points out that she’ll probably have a close confirmation – I know Manchin has voted for all the nominees so far, but I wouldn’t put it past him to think he could score some points with conservatives/racists/West Virginia voters (all the same thing anyways) by publicly tanking a nominee who *gasp* is Muslim and South Asian and a woman.

    I know Demand Justice pushed an ad campaign for Dale Ho, though TBD on its effectiveness since Schumer can’t even seem to schedule a discharge vote… For those of you with connections there, please ask them to do the same for Ms. Choudhury. She’s too good to be a casualty of Manchin’s god complex (or whatever that shallow nutjob Sinema is up to these days).

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    • I do believe Manchin will eventually vote against a nominee but I doubt it will be the first Muslim women from the home state of the majority leader. If he voted for Jennifer Sung, I see no reason why he would vote no here. I think if Biden nominated an outspoken abortion advocate that might be the first no vote.

      Liked by 1 person

      • Do you think it’s possible that Collins and/or Murkowski would vote to confirm abortion rights advocates? They have done so during the Obama years (even when Manchin voted against) but their votes didn’t actually matter for those judges. Do you think they would be willing to vote in favor of confirmation when their vote actually mattered?

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      • I explained a scenario where this could happen in the previous reply just above this one.

        Yes, that’s a good point. Also it’s politically good for Collins to appear moderate as Maine leans blue. It would be a good chance for Collins to show that she is willing to buck her party when she has the decisive vote.

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      • Also, Manchin did get to break his streak on supporting every Biden nominee that has gotten a vote. Manchin and 4 other Democrats (including Sanders & Markey from the left) voted against confirming Robert Califf for FDA commissioner. 5 or 6 Republicans voted in favor.

        I suppose there are qualified judges with weird combinations that could be used as a way to let Manchin vote no while still having enough votes for confirmation. For example, I think a civil libertarian who advocates for both abortion rights and gun rights could get enough Republican yea votes despite a Manchin nay vote.

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  26. On Johnnie Rawlinson, it’s also important to note that she’s an anti-LGBT bigot who joined a dissent written a few years ago by bigoted Reagan Judge Diamond O’Scannlain that stated same sex couples being discriminated against had to go through the legislatures for help and if they couldn’t get it, that was just too bad, the courts had no business getting involved.
    Would love to see her get replaced with someone like Holly Thomas.

    Liked by 2 people

    • I love how senator Durbin directly confronted senator Kennedy. He actually gained more of my respect. And senator Whitehouse using his time to talk about Republicans getting rid of blue slips for appeals court nominees was good. Then senator Booker directly responding to senator Hawley’s line of attacks was good as well.

      I’m more confident today we may see more red & purple state court of appeals nominees in the near future after the Democrats showing they have a backbone today even down two senators.

      Liked by 1 person

      • Three different times under Trump, far right nominees were processed over the objection of Sen. Casey’s Blue slip to get hacks confirmed to the Third Circuit.
        Now the shoe is on the other foot and Democrats are supposed to play nice?
        The heck with that.
        Whitehouse was 100% correct in what he said and I’m glad he and others stood up to the vile attacks on Freeman.

        Liked by 1 person

      • 100% @Zack. The only thing I disagreed with from senator Whitehouse is that he hopes one day they can get back to some sort of agreement. I don’t want ANY agreement because that would mean some sort of regression from what Republicans had.

        If they want to agree on something starting in 2025 after the next presidential election I would be ok with that. But Biden should have 4 years without blue slips just like Trump had.

        The two California senators being out today really hurt because senator Cruz got to go last for panel 1. It would have been nice for somebody to be able to rebut this crap.

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      • One thing I remember is that Casey did turn in a blue slip for Stephanos Bibas, the first Pennsylvania Circuit nominee. Casey voted against confirming him, but (reluctantly) consented to the nomination.

        The nomination for David Porter was shoved down Casey’s throat and he was livid about it. Pat Toomey was also blindsided and made concessions on District Court nominees to mollify Casey.

        Peter Phipps was not the White House’s first choice for the third vacancy. I cannot recall the name of that choice, who lived in Pittsburgh at the time but has since moved to NYC. It was believed that Phipps would be acceptable to Casey. But Casey felt he didn’t have enough courtroom experience.

        Liked by 1 person

      • Deaquan, I just found the name. Leon DeJulius of the Pittsburgh branch of Jones Day and the local Federalist Society was whom conservatives in the White House wanted in 2019, but Bob Casey was dead set against him. Peter Phipps was the fallback choice whom they (and Pat Toomey) thought would be acceptable to Casey. In the case of Phipps, Casey’s opposition had little to do with ideology.

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      • Phipps is the only one that is remotely acceptable to the Democrats. Bibas and Porter are blatantly unacceptable.

        Casey isn’t far left yes, but he’s considerably more to the left than he was when he was first elected. I don’t think he would like to appoint someone who works for pro-choice organizations, unlike Manchin but he won’t block one either.

        Liked by 1 person

  29. Agree 100% with what you said Dequan.
    Padilla will be back next week and I expect going forward that Feinstein will likely be around more.
    Despite her age related issues, her absence the past few weeks was more due to her husband’s declining health then hers.
    I expect once Lujan comes back all 50 Dems will be around (knock on wood) for KBJ and lower court nominees.

    Liked by 1 person

  32. William Pocan is officially out as a nominee as Durbin said he will honor the blue slip rule.
    I get why he’s doing it.
    As much as the circuit courts stunk, Democrats were able to keep horrible nominees off district courts, including one to the seat Pocan was nominated to.
    Not worth nuking the blue slip rule over a 61 year old nominee, especially given that there are more seats in blue/purple states then red ones.

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    • I agree. They should focus on the blue state district court vacancies & the appeals court vacancies in every state. That plus the local DC 15 year term judges will be enough to keep the senate busy for the rest of the year. And especially with Pocan being 61. Hell if we end up with the public defender (I think her name was Valles) in her 40’s, I might actually thank Ron Johnson.

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    • If I had to hazard a guess, Durbin did this because it’s likely that Nina Morrison and Kenly Kiya Kato are going to have to go through the discharge motion but in order for that to happen, you need all 11 Democrats which Durbin doesn’t have right now.
      Better to play it safe rather then watch nominees lose in committee.

      Liked by 1 person

      • Yup. But I would have rather he held the meeting, not vote on the 3 from two weeks ago & hold over the 3 from last week. Then you could vote on all 6 next week. But Schumer probably won’t be able to vote on judges for another 2 weeks anyway so I guess it’s no big deal.

        Liked by 1 person

      • How would it fail though? They can have all the bipartisan nominees first, and then Feinstein and Padilla can vote by proxy to deadlock on Morrison or Kato.

        Worst case scenario, GOP senators flee the room before Morrison and Kato can get voted on.

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      • Additionally, I think y’all are putting too much blame on Durbin for these lags. There is only so much Durbin can do with one or two Democrat senators on the committee out many weeks, and I don’t understand the SJC rules too well (understanding the rules would give me a much better indicator of how much blame Durbin has for this).

        I’ll understand the rules much better the first time that the entire GOP slate of the judiciary committee boycotts a SJC meeting. I think Grassley would be the hardest to convince to boycott since Grassley prides himself on never missing a vote.

        Also hypothetically, the Dem majority with the VP’s vote can do anything they want, so the Dems could create a 23rd seat on the judiciary committee and bribe Manchin into voting for it by giving that seat to him or a Dem of his choice.

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      • The issue isn’t so much the vote, as the Dems can vote by proxy (Albeit I’m not sure they would push Feinstein with her husband just passing away a few days ago anyway). The issue is the quorum to conduct the vote in the first place. With all Dems present, you need one Republican to make quorum. With both California senators out, you now need three.

        Senator Graham hasn’t attended even one executive vote in person in the entire Biden presidency even though he has been voting yes by proxy. Tillis & Sasse rarely shows up as well. So, you can’t count on him. You probably can only count on Grassley & maybe Cornyn. The rest of the GOP senators shows up but would be a boycott threat, so Durbin probably figured it’s not worth the time to test them with the senate in session 7 straight weeks.

        Still, there’s no excuse for no nominations hearing next week.

        Liked by 1 person

      • @Ryan Joshi

        While I do think Durbin is doing a good job overall, my complaints about him are that he could be doing more & with a 50/50 senate, we don’t have time to just do a good job. I only blame Durbin for things completely in his control like the following…

        1. Holding hearings with only 3 nominees on multiple occasions even when there are many more pending nominees that were nominated over a month prior.
        2. Not putting nominees on the executive calendar the next week. The GOP is going to hold over every nominee once so if they need more time, putting the nominee on the calendar the next week doesn’t mean anything because they are going to have another week anyway.
        3. Not holding a nomination hearing at all like next week despite numerous nominees nominated months earlier.
        4. Not holding any nominations hearings at all during any recess weeks like the GOP did multiple times during the Trump presidency.

        Each of those four things are completely in Durbin’s control regardless of the GOP shenanigans.

        Liked by 1 person

  35. The SJC did not announce any nominations hearing next week despite Childs & Abudu as well as SEVEN non William Pocan district court nominees pending a hearing, all nominated well over a month ago. I get both California senators are out & can’t vote on nominees if there’s no quorum, but no reason not to have the hearings so once everybody is back, they can vote them to the floor.

    Like

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

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