Judge Margaret Guzman – Nominee to the U.S. District Court for the District of Massachusetts

Massachusetts District Judge Margaret Guzman has been a fixture of the Worcester legal community for the past thirty years. She has now been tapped for the federal bench.

Background

Guzman received a B.A. from Clark University in 1989, and then obtained a J.D. from Boston University School of Law in 1992.

After graduation, Guzman became a public defender in Massachusetts. In 2005, she became a solo practitioner in Worcester, Massachusetts.

In 2009, Guzman was nominated by Governor Deval Patrick to be a Judge on the Dudley District Court. In 2017, Guzman joined the Ayer District Court, where she currently serves.

History of the Seat

Guzman has been nominated for a seat on the U.S. District Court for the District of Massachusetts opened by Judge Timothy Hillman’s move to senior status on July 1, 2022.

Legal Career

Guzman started her legal career as a public defender in Massachusetts. Among the matters she handled as a public defender, Guzman represented Jose Ramos, who shot and killed Ramon Cruz for using a derogatory name for a homosexual when referring to Ramos. See Worcester Man Gets 14 Years for Shooting Neighbor, A.P. State & Local Wire, Aug. 10, 2000. She also represented Brian Martel, who was convicted of stabbing and killing his son while in a psychotic episode. See Father Who Stabbed Sons Pleads Guilty to Reduced Charges, A.P. State & Local Wire, Aug. 31, 2004.

From 2005 to 2009, Guzman worked as a solo practitioner in Worcester. During this time, Guzman represented Anthony Leo, who was convicted of raping a Worcester woman by force after entering her apartment. See Man Gets Life Sentence After Rape Conviction, A.P. State & Local Wire, Mar. 15, 2007.

Jurisprudence

Guzman has served as a state court judge in Massachusetts since her appointment in 2009. For the first eight years of her career, Guzman served on the Dudley District Court, which holds jurisdiction over felonies up to five years, misdemeanors, ordinance violations, and all civil matters involving less than $25,000 in damages. Since 2017, Guzman has served on the Ayer District Court.

Among the notable matters that she heard as a judge, Guzman held Alberto Sierra without bail after the disappearance of his girlfriend’s five-year-old son. See Amy Crawford, Boyfriend Ordered Held in Mass. Missing Boy Case, A.P., Dec. 24, 2013. Guzman also dismissed charges against Prof. Sabine von Mering arising from a protest where she blocked a coal train to Merrimack Station, the last coal powered power plant in New England. See Jen Crystal, Prof. Arrested For Blocking Coal Train in Climate Protest, The Justice: Brandeis University, Jan. 28, 2020.

Guzman’s tenure on the bench also overlapped with some criticism of the state bench for high rates of acquittals in Driving Under the Influence cases. See Chris Burrell and Neal Simpson, High Acquittal Rate in OUIs; 86% Innocent in Bench Trials; State Supreme Court Calls for Reform, The Patriot Ledger, Nov. 2, 2012. Special counsel for the Massachusetts Supreme Judicial Court noted that, in the period studied, Guzman had acquitted all 149 defendants who appeared before her in bench trials on drunk driving charges. See id. While the Court’s report made it clear that there was no misconduct on the part of the judges involved, it nonetheless called for reform of procedures to ensure that lawyers did not engage in judge shopping. See id.

Political Activity

Guzman has a relatively limited political history, including a donation to Democratic Governor Deval Patrick in 2006.

Overall Assessment

Having been a judge for thirteen years, Guzman is a relatively conventional choice for the federal bench. If obstacles arise in her path to the bench, they may be drawn from her acquittal rate while on the bench. However, if Guzman can explain that issue, she should have a relatively painless confirmation.

62 Comments

  2. That’s a pretty high acquittal rate for the DUI cases that appeared before her. But she seems well positioned to becoming the first Hispanic federal judge from Massachusetts. While I not too thrilled about another MA judge in their mid 50’s, at least the other three pending nominees are younger so that rounds out the states batch prettt nicely. With the ages of some other district court judges, I expect addition vacancies before Biden’s term is up.

    Like

  3. Great article once again! The preference to favoring defendants so blatantly makes me a bit concerned with this nominee. She definitely has a solid amount of experience though, so this would be a tough call if I were voting on her.

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  4. ““I think there’s probably a greater likelihood the House flips than the Senate. Senate races are just different — they’re statewide, candidate quality has a lot to do with the outcome,” he said in Florence, Kentucky, at a Northern Kentucky Chamber of Commerce luncheon when asked about his projection for the 2022 election.

    “Right now, we have a 50-50 Senate and a 50-50 country, but I think when all is said and done this fall, we’re likely to have an extremely close Senate, either our side up slightly or their side up slightly.”

    https://www.nbcnews.com/politics/2022-election/mcconnell-says-republicans-may-not-win-senate-control-citing-candidate-rcna43777

    Mitch McConnell is not particularly confident that he will take the Senate. Gee I wonder why. I think he’s trying to escape the blame if he loses seats and be able to stick on as minority leader. I don’t think it will work if the GOP has 49 or fewer seats.

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    • @Shawn

      Who do you think the GOP would nominate as minority leader if not McConnell? John Thune isn’t exactly in Trump’s good graces either. I haven’t exactly thought about it because I don’t think Mitch will lose in a vote, but curious who you & everybody else thinks would win a vote over him?

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      • @Ryan Joshi

        Republicans have nominated some candidates who seem outlandish. But outlandish in different ways. Blake Masters of Arizona seems politically outlandish, while Herschel Walker of Georgia seems personally outlandish. J.D. Vance of Ohio seems to be a mix of both, while Mehmet Oz of Pennsylvania seems to be inept.

        Liked by 1 person

      • Yes the GOP has nominated some really awful candidates and there is one clear thread there, without Trump’s endorsement, it is unlikely that any of those four candidates would be the nominee. I think Vance is still favored to win (in a state and year where the GOP should be rock solid) but the other three are likely to lose.

        I would add that while Ron Johnson and Ted Budd aren’t in the same category as Masters/Vance/Walker/Oz, they are still below average candidates. While Johnson could still win and Budd is favored, even a run of the mill conservative like say Laxalt would probably be favored in WI and solid in NC. And we’ll see what comes out of NH, but it’s not likely to be any better.

        I think candidate quality will cost the GOP multiple seats this year.

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    • So for all of my heart felt support for president Biden & me voting for him every time he has been on my ballot (4 for 4), in 2020 Beto O’Rorke was actually my first choice. In my eyes, I see him as our generations JFK. Him coming within 3 points of Ted Cruz really convinced me he could win the presidency. I loved the fact that he visited every county in Texas during that campaign. I can see him visiting states that Democrats have written off but shouldn’t be if he ran for POTUS.

      I just think the whole “Hell yea I want to take away their AK’s” comment really hurt him. I doubt anybody didn’t know that was his view, but just saying it so enthusiastically on a debate stage guarantees it will be played over & over in any general election campaign he hsa for the rest of his life. It kind of reminds me of the Howard Dean outburst.

      But I just love Beto having backbone. Something Democrats desperately need. I really hope he can oust Abott because him as governor of Texas would probably propel him over THIS sitting VP as the front runner in 2024 should Biden not run for some reason.

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  6. Another judiciary listicle:
    List (in order of importance) the biggest miscalculations/missed opportunities throughout US judiciary history, from a liberal/progressive perspective. Please don’t just include judicial rulings, as those can always be corrected down the line. Bonus points if your list includes things that, upon first glance, don’t directly relate to the judiciary, but down the line have an impact.
    My (granular AF) list to follow…

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    • 1: TIED (If you had to choose, which would you rank above the other?)
      Senate Democrats’ failure to defeat the Clarence Thomas nomination
      OR
      Ruth Bader Ginsburg’s catastrophic decision to not retire in 2014

      2:
      Sen. Ted Kennedy’s primarying President Carter
      You should never run against the sitting president of your own party. He will lose. He. Will. Almost. Always. Lose.

      3:
      Al Gore not campaigning enough (or successfully) in New Hampshire
      NH was a much more pivotal and gettable state for Gore than Florida (sorry, Dequan). ~8000 more votes there would have made Gore president.

      4:
      Democrats not effectively countering the Right’s “Borking” narrative
      All things considered, Bork disqualified himself from being on SCOTUS. But Democrats failed to highlight that this was a bipartisan assessment, with Republicans voting to defeat the Bork nomination as well. Instead, Republicans have successfully cast Dems as being unfair with all GOP SCOTUS noms. That has led many Americans to tune out Dems when they point out truly awful nominees, since that’s the “viciousness” they’ve come to expect from Dems, starting from when they turned Borking into a verb.

      5 (related to #4):
      The unfortunate disappearance of the 9th Amendment
      In the 9th Amendment, the Constitution, a document that guarantees freedom and liberty to the people, states that it cannot possibly mention all the rights the people have. That, however, doesn’t mean that those rights should be trampled upon. Why, then, don’t we cite this amendment more? I can absolutely understand why the right wants to relegate it to irrelevancy (Remember Bork?), but why are liberal acquiescing? This is easily one of the biggest jurisprudential missed opportunities in constitutional law. There’s no need for “substantive” due process when you already have the 9th.
      The whole “history and tradition” standards rightwing judges use when evaluating 9th amendment claims are self-serving dicta that can be easily dispatched. (Oh, you want a documented history and tradition of women’s rights in this country when for most of its history women have been less than equal? Blacks have to present history and tradition of rights owed to them when their enslavement is countenanced by the Constitution?) It’s a standard that was set up to ensure the failure of right claims brought under this amendment. We shouldn’t allow it to continue.

      6:
      Chief Justice Earl Warren’s retirement announcement less than SIX months before a presidential election
      No, I do not blame LBJ’s nomination of Abe Fortas as the root of this miscalculation. I know that nuances tend to get lost throughout the decades, but it is important to remember that Republicans had pledged to oppose ANY potential SCOTUS nominee by LBJ in 1968. Warren should have left the bench a year or so earlier. If that had happened, I am convinced that even the flawed Fortas could have been confirmed to succeed Warren, especially since LBJ paired Fortas’s elevation with a Southern racist associate justice nomination. At the very least, it would have given LBJ enough time to find a replacement nominee.

      7:
      Barack Obama’s nomination of Merrick Garland to fill the Scalia vacancy
      Besides Donald Trump these days, Garland excites no one. On the other hand, forcing McConnell to block a KBJ nomination would have driven important Dem constituencies to the polls in droves.

      8:
      Hillary Clinton’s weak (or nonexistent) campaigning and performance in the three deciding states (PA, WI, and MI)
      Knowing what we know now, the 2016 winner was guaranteed at least two vacancies. Trump filled three.

      9:
      President Biden and establishment Dems’ shortsightedness on expanding SCOTUS
      The principles of checks and balances and plain old politics support an advocacy campaign of expansion, even if it ultimately doesn’t happen. Old schoolers and establishment types seem incapable of understanding that fully pursuing a policy change can have just as profound an impact as actually accomplishing that policy change. FDR’s court-packing scheme worked. The court stopped blocking his New Deal policies and he ultimately appointed all the sitting justices at one point.
      Juxtapose that brilliant strategy with Biden’s feckless commission. This current Court, feeling no legal pressure to moderate, will continue to be wildly out of step with the country on its march to Taney- and Lochner-era infamy.

      10:
      NY Senator Roscoe Conkling’s refusal to accept a seat on SCOTUS, twice, and one time AFTER he was confirmed by the Senate, in the late 1800’s. The more consequential refusal was of the Chief Justice position offered by President Grant. Why is this on my list?
      Others may disagree, but I trace the evil jurisdictional roots of corporate personhood that culminated in (and continue to spawn from) Citizens United to the man who, almost a year after Chief Justice Samuel Chase died, accepted that post: Morrison Waite. Waite stunningly declared at the start of an oral argument that the fact of corporate personhood is accepted by the court and so lawyers shouldn’t even bother arguing about that. This was then crystallized into case law in Pembina Consolidated Silver Mining Co. v. Pennsylvania a couple terms later. While many of these cases were decided unanimously or by large majorities, Waite blatantly putting his thumb on the scales from the outset definitely had an impact. Conkling on the other hand was a huge patronage guy (and an absolute abolitionist Radical Republican) who disagreed, especially since corporate personhood would take away a substantial part of his power. Chief justices back then had a powerful sway over their colleagues.

      Let me know what you think of my list and add your own.

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      • It’s a great and deep topic, Gavi, and I need to think hard on what things would be on my list. (I’ll try to do that this weekend).

        But I disagree with several things on your list.

        1 (a). I would put Thurgood Marshall retiring at all as #1 here. I know he was sick, but frankly Marshall should have spent 91-92 in the hospital and just died on the bench. I could also add that Brennan should not have retired. He was already having second thoughts before he sent his retirement announcement. If Brennan is on the bench, Marshall likely doesn’t leave.
        As far as Clarence Thomas himself, I blame Joe Biden here. Had Biden brought up the additional witnesses regarding Thomas’ disgusting behavior, I think you have gotten 3 more votes. I can’t blame the Southern Democrats who voted for Thomas, as Thomas was quite supported by Southern Black voters (and not so much by Northern ones).
        1 (b) Ginsburg not retiring was a disaster. Absolutely. Whether she should have retired in 2013 or 2014 is a legitimate debate, that she should have retired in one of those years isn’t one. That said, the Democrats had exempted SCOTUS from the nuclear option. What happens if/when the GOP filibusters?

        2. I *very* strongly disagree with you here. Jimmy Carter was a disaster of a President. He was going to lose to Reagan regardless of whether Kennedy primaried him or not. Frankly I think Carter would have lost to Kennedy in the primary if not for the Iran Hostage Crisis. One poll in October 1979 showed Kennedy up 52-16 in a primary.

        3. Gore also little effort in other states like Nevada, While Gore losing sucked as far as the judiciary, I think it was far less of a blow than Hillary losing in 2016.

        4. I agree here, but I’m not sure it would have made much of a difference. The “borking” mythology was primarily on the victimhood right, and I’m just not sure that there was anything the left could have done for it not to become an article of faith with those on the right.

        5. I mostly agree here. But this cuts both ways. The right-wing can also use the 9th Amendment to justify Lochnerism too. But I agree that the 9th Amendment should be part of the progressive constitutional framework.
        I also think that the Privileges and Immunities Clause and Due Process Clauses should be considered a little differently too. I remember Kermit Roosevelt had an interesting paper on this a while back.

        6. Strongly disagree here. Earl Warren was scared he wouldn’t make it through a Nixon presidency. After RFK’s assassination, Warren was certain that Nixon was going to and he wanted to leave the bench. The only mistake he made is not reneging on his resignation in early 1969.
        I also strongly disagree with
        “Republicans had pledged to oppose ANY potential SCOTUS nominee by LBJ”. This is categorically untrue. Yes twenty some Republicans signed a letter saying that the next President should pick the next justice. However, several liberal Republicans voted for Fortas, and majority leader Dirksen had initially supported Fortas and after Fortas was defeated encouraged LBJ to nominate someone else in the lame duck. (LBJ was too proud to do so) And even the writer of that letter, Senator Robert Griffin, made it clear that there were some exceptions for him, in particular Arthur Goldberg. The bigger problem than Republicans were racist Southern Democrats.
        It was the selection of Fortas that was a disaster. I think Goldberg or Brennan would have been confirmed.

        7. I entirely agree here. Should have nominated KBJ. Not entirely sure it would have made a difference though, except for one thing, I suspect that Merrick Garland would not be AG today (probably Doug Jones instead).

        8. Fully agree, but Hillary did campaign hard in PA. And even if a vigorous campaign in WI/MI wins her those states, she still only has 258 EV and needs PA or FL.

        9. 100% agree.

        10. I 100% agree, but Conkling died in 1888. Likely his replacement is going to be a pro-corporate personhood person. The problem wasn’t one guy, it was the entire court (and frankly the entire legal system at the time).
        I don’t think there was a realistic way to avoid corporate personhood in the late 1800s frankly. But the New Deal should have overturned it like Justice Black and Douglas (and likely Murphy and Rutledge) wanted to do. (and the selections in 1930s and 40s will be near the top of my list as missed opportunities).

        Liked by 1 person

      • @Gavi

        Great question & good answers. I have a slightly different opinion on some so I’ll give my answers below. I’m gonna put mine in order of when each happened instead of order of importance. I’ll respond to my opinion on each of your answers a little later this afternoon. I’m gonna go for some of your “extra credit” & give some non direct judicial answers as well.

        1. LBJ nominating Abe Fortus instead of any other non-Marshall justice or a non sitting justice.

        2. The handling of the Elian Gonzalez situation. There is no way the party of The Mariel boatlift should be almost non existent in winning the Cuban vote. I was watching a documentary the other week I believe on MTV that detail things that happened in the 90’s. One of the episodes was on the MTV show The Real World. They were talking about how Pedro Zamora, the Cuban on the show that died of AIDS & how president Clinton wrote him a letter & called him while he was basically on his death bed. They were showing footage of Cuban Americans in South Florida being supportive of Clinton. That was about 25 years ago & I can’t even contemplate those imagines today. I know the law was followed in the Elian Gonzalez case but I think it could have been handled much better as it really was the start of the Republican dominance in the state of Florida.

        3. Al Gore not campaigning more in New Hampshire & not campaigning at all with Bill Clinton.

        4. President-elect Obama’s decision not to campaign for Jim Martin in the Georgia run off in 2008. Obama was at the height of his popularity. I absolutely think had he shifted into campaign mode for Martin, making him being the 60th vote essential to his agenda, he could have gotten out the vote to put him over the top. I remember some hip hop artist holding rallies for Martin & was so upset Obama made the comment saying he was going to remain above politics & not get involved. I thought it was stupid then & after what happened involving my #5 below I thought it was even a worse decision.

        5. Democrats not pushing back harder on senator Coleman who was probably the original election denier. There’s no way it should have taken 7 months for him to concede to Al Franken, holding up Democrats 60th vote.

        6. Democrats not pushing to make Washington DC a state while they had 60 Democrats for a year & a half.

        7. Massachusetts Democrats in the legislature not changing the law replacing a senator that leaves office during their term to the governor having to pick somebody from the same party to serve out the remainder of their term similar to what Kentucky did in the past couple years.

        8. Chairman Leahy’s decision to not flinch on changing the blue slip policy for judicial nominees. That led to countless seats left open once McConnell became
        Majority leader.

        9. RBG’s decision not to retire before the 2014 midterms.

        10. Hillary Clinton not being able to find the state of Michigan on a map during her campaign. I remember Michael Moore speaking about this repeatedly during her campaign. He was saying there were Trump yard signs as far as the eye could see when he drove through the state.

        10. Democrats not cancelling any August recess last year or this year to hold hearings & confirm additional nominees.

        Liked by 1 person

      • @Gavi

        Now that I have a few minutes I’ll give my opinion on your answers.

        1. I included RBG not retiring in my answer so of course I agree with you there. I don’t agree so much on Dems blocking Clarence Thomas. Looking at it from today’s lens of course seems like an easy decision but going back to the early 1990’s, I don’t know if blocking the second black person to ever be nominated to SCOTUS is as easy as it sounds today. Especially knowing there was no otehr black person even being considered. I am not saying confirming him was the right thing to do, just saying it’s not as easy of a decision as it is today.

        2. I’m not so sure Carter still would not have lost if Kennedy didn’t primary him. I honestly have no issue with Ted primarying him.

        3. I put your #3 in my answer so we agree.

        4. This is a good point but I’m not sure it makes my top 10.

        5. Anotehr good point but not one that would make my top 10.

        6. I actually tried to research why Warren waited so late in LBJ’s term to announce retirement & why he didn’t rescind after Fortus was blocked & Nixon won. I haven’t been able to find him in bad health from anything I have read but certainly a subject that I have researched before.

        7. This is an argument I have heard others say. I don’t agree. Obama could have nominated The Pope, McConnell still wasn’t going to confirm them. And as for helping to energize the base, I’m just not sure I k now which Democrats that didn’t vote for whatever reason they didn’t was going to vote all of a something because the nominee was a black woman. I think this is just one we will have to disagree on.

        8. I 100% agree with you when it comes to Hillary not campaigning enough in Michigan.

        9. While I do not [personally support packing the court, I do think common sense reforms should be explored.

        10. While I have read Roscoe Conkling rejected a SCOTUS nomination twice, I just don’t know enough about why & the other possibilities back then to comment on this one. What I will say is isn’t it amazing how weak the court was back then that somebody would reject a sure appointment. That simply would not happen today.

        But once again overall very good analysis & a great topic.

        Liked by 1 person

      • @Shawn and @Dequan

        Thanks for considering my list and posting your feedback (Shawn) and for posting your own list (Dequan).

        Very informative, Dequan. I was too young so I don’t know much about the Elian Gonzalez event. But I thought that Dems abysmal standing with Florida’s Cubans stem from the failure of the Bay of Pigs invasion? Wasn’t that already set in stone by the time of the Gonzalez affair?

        Re: #4: Absolutely! This would go on to be a repeated mistake of Obama’s. “Post-politics” politician is such an oxymoronic (and moronic) concept.

        Re #5: I would add Kirsten Gillibrand’s shameless anti-Franken move above or below your #5! I have never forgiven her for this. I did not vote for her in 2018, a thing I once thought was unthinkable, due to senators’ role on my single voting issue. Franken was one of the most effective members of SJC. A non-attorney at that!

        Re #5: Absolutely! I’d forgotten about this. Leahy’s decision was devastating. And I think this kind of ties in with Shawn’s feedback in 1B. True, Dems didn’t include SCOTUS in nuking the executive filibuster in 2013, but they could have done so to fill a vacancy if it occurred while they were still in power.

        (PS. Dequan, I just refreshed and saw that you posted your feedback to my list. The above is solely on your list.)

        Like

      • I’ve been reading these and they give a lot of good insight. There have been so many factors leading up to this 6-3 ultra-right Supreme Court & right-wing appellate courts.

        I have a few more:

        1) O’Connor’s decision to retire. Rehnquist pressured her to retire and she fell to the pressure, only for Rehnquist to die 2 months later. O’Connor could’ve waited until 2007 to retire, in which someone like Alito might not be confirmable, thus forcing Bush to pick someone more like Roberts. Additionally, O’Connor’s husband was forced into a nursing home not long after she retired, in fact, he was “flirting with other women” because he couldn’t remember his wife. This was a key component of O’Connor’s retirement regrets. Ginsburg once said that O’Connor could have “served 5 or 7 more years”.

        2) Democrats blocking Bork may actually have done more harm than good. For those who don’t know, Bork died in 2012. Upon Bork’s death, Richard Posner wrote an op-ed basically explaining how Dem opposition of Bork backfired on them. And knowing Bork’s alter ego, I believe that he would have remained on the Supreme Court until his death, thus allowing Obama to make a 3rd appointment. Double points for Dems if the Bork is put on Scalia’s or Thomas’s seat rather than Kennedy’s.

        3) Alleged internal rigging of the 2016 primary against Bernie (2020 too but I’m only going to say 2016 was a mistake if this is true because Biden won but Hillary lost). A study showed that 7-12% Bernie primary voters voted for Trump in the general, and probably a lot more didn’t vote/voted third party/wrote in Bernie’s name. Sure some establishment Dems would vote against Bernie but Bernie might have had enough votes to beat Trump in WI/MI/PA in 2016. Or perhaps another state that nobody thought would go blue.

        4) Roe v. Wade was decided too early. Had it been decided 10 years later, the Equal Rights Amendment may have passed, thus protecting the Roe v. Wade decision from a ultraconservative SCOTUS. Also the conservative legal movement centered around overturning Roe would be 10 years behind.

        5) It’s hardly fair to blame David Souter, but we would be better off had Souter been more stealthy and only sided with liberals in cases that he cared the most about AND where his vote was decisive. Anger about Souter’s leftward move helped create litmus tests to ensure that every Republican justice thereafter was a staunch conservative, and since then, conservatives are 6 for 6 (or 5 for 6 depending on how you view John Roberts) on getting solid conservatives on the bench.

        6) Dem lack of focus on the state legislatures. Because Republicans took state legislature elections more seriously up through 2010, they were able to gerrymander the state legislature and thus pass voter suppression laws, abortion bans, and more. If state legislatures were not grossly gerrymandered, the whole “independent state legislature” legal theory may have never seen light of day.

        Like

      • @Ryan Joshi

        I thought about including your number one too. I decided against it because O’Connor was over heard at a party on the 2000 election night saying she would have to stay on the bench for another 4 years after news reports initially called Florida for Gore. I know she eventually expressed regret for retiring too early but I was never convinced she would have intentionally waited for a Democrat president.

        I absolutely love your number 6. Dems simply don’t take state legislators as serious as Republicans sadly.

        Liked by 1 person

      • @Gavi

        In regards to the Cuban vote in South Florida, no, South Florida was still Democrat through the Elian Gonzalez issue (About 35 years after the Bay of Pigs).

        As for senator Gillibrand, I didn’t like her as a replacement for Hillary Clinton back then & definitely don’t like her after the Fraken issue. He should run for his old seat back because I couldn’t pick Tina Smith out of a line up… Lol

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    • I truly wish Biden & Democrats would have made a huge issue out of the judge Hurd rescinding. The other judges we have discussed are all bad, but to rescind after a nominee has been announced is beyond the pale.

      I would have cancelled a day of the recess & had a Jorge Rodriguez only hearing just to show they are still moving forward with the nomination.

      Like

      • At first, I was sympathetic with Hurd, knowing that cases filed in certain areas go to certain judges, thus believing that Hurd’s reason for the demand was so that he could actually work less (i.e. someone working on a giant project semi-retiring and demanding their successor be assigned to help on the same project). However, after Hurd rejected Rodriguez’s deal to move to Utica, that shows Hurd’s incompetency or worse. Also, if Rodriguez is confirmed but Hurd refuses to leave, I don’t know what happens, though I believe a smooth transition can occur if Hurd agrees to leave before the end of Biden’s presidency.

        Liked by 1 person

  8. I wonder if Thomas Saenz had this guy in mind regarding the 10th Circuit Kansas seat. Not my favorite due to his Big Law background.
    G. Gabriel Zorogastua, who is both Latino and LGBT, is actually is in Kansas City, MO (which is where I had him as a possibility), but he went to Kansas schools for both college and law school and is admitted to the Kansas bar.
    Because I can’t think of too many Hispanics who would be a fit for that Kansas seat.

    https://www.polsinelli.com/g-gabriel-zorogastua

    Like

    • G. Gabriel Zorogastua (born c. 1982) would have been a good pick as well. I will say about this site, we have been able to get an enormous amount of information regarding the judiciary but the one thing we have not be able to get is Sanez list he sent to The White House last year of possible Hispanic nominees. I would love to see those names. I wonder if Brad Garcia was one of them. I am interested in if he had older lawyers on the list or were most young.

      We have seen so many list since Biden took office (Demand Justice, People’s Parity Project, Law 365, etc.) & each list has had at least one name nominated by Biden. I just can’t imagine nobody from Sanez list has been nominated yet so I’m curious who. Biden has named 27 Hispanics (I’m not counting Khan) to circuit or district court seats. If I had to guess which was from Sanez list I would probably guess Ana Reyes and/or Brad Garcia.

      Like

      • Also regarding G. Gabriel Zorogastua, if Biden has his heart still set on him there are two opportunities to nominate him to a federal judgeship. There is still a district court vacancy in Kansas. I think this is the type of nominee that can get blue slips returned from the two Republican senators. If not in Kansas, I see on his resume he has court of international trade experience. There’s two vacancies on that court which is a lifetime appointment as well. One of the two vacancies has to be filled by a Republican by statute. G. Gabriel Zorogastua could take the Democrat seat.

        I have made the suggestion that the Republican seat could be filled with either the mega South Florida Republican donor’s nephew that Marco Rubio has been trying to get nominated to a federal judgeship since Trump was in office. That might get some movement on the district court seats that are vacant in Florida. If not him, perhaps Chad Meredith if he’s willing to move to New York & go to that type of judgeship. I suspect either would accept the nomination because chances of them being nominated in Florida or Kentucky are pretty slim now.

        Like

  9. The failure of Ginsburg to retire was discussed above. Suppose she did retire in 2013/2014. Whom would you have wanted to replace her, and whom do you think probably would have been the replacement? Would it have mattered if her retirement was 2013 vs 2014?
    One interesting scenario, if Ginsburg retired in 2013, would she have flipped her vote on the Prop 8 case, perhaps resulting in nationwide gay marriage 2 years earlier as her last hurrah?

    Like

    • So I don’t think it would have mattered if Ginsburg unless she had retired in the last 5 or so months in 2014. There’s no way majority leader Reid would not have filled her seat. As for who would have replaced her, there is an outside chance Obama would have went with Garland, as he truly was the most qualified person for SCOTUS & from Chicago.

      I think the only other likely pick would have been Diane Wood who is 2 years older then Garland & also from Chicago. She would be on par in being as progressive as RBG. Maybe Pamela Karlan would have been given consideration, but in this day & age I just don’t see a non sitting federal judge being picked for SCOTUS.

      Like

    • I’ve said on this site before out of the remaining 5 circuit court vacancies without a nominee, the only one that would be acceptable to not have a nominee & at least a hearing before the end of the year is the 7th (IN) seat. That’s because the Indiana senators worked in good faith to get the Doris Pryor nomination, so since Judge Kanne just died a couple months ago, I would work with them to get another compromise nominee.

      It’s outrageous to not get a nominee for the seats in blue states like New Hampshire & Maryland. I think Biden should spend little time expecting senators Coryn & Cruz to negotiate in good faith. I would hope Biden works with senator Tester to get a Montana nominee soon, particularly since he’s the senior senator.

      As for who gets each seat, I have no clue for New Hampshire. I’ve mentioned 3 ACLU lawyers in past post on this site. They are Gilles Bissonnette, Henry Klementowicz & Devon Chafee. Of course the district court judge Biden appointed last year is in the mix too. I’ve seen some other names floated but all of those were born in the 1960’s so I definitely want somebody younger.

      We have thrown around countless names for the Texas seat. For me, I just don’t want a sitting district court judge to be the nominee because then we would have to backfill their seats & with blue slips in play I’m not confident it would be anybody good. Amparo Monique Guerra was my favorite but there’s no shortage of good names.

      Anthony Johnstone would be my favorite for Montana. Alex Rate would also be a very good (And younger) nominee.

      Ajmel Quereshi Is my favorite for the Maryland seat but he just became a magistrate judge earlier this year so not sure he will be chosen. I hope it’s not one of the district court judges elevated.

      Even though I don’t think think they Indiana seat will be filled, I hope Mario Garcia is the nominee. I know he is also a magistrate judge but he would be the first Hispanic 7th circuit judge & has a decent progressive background. Zackary Myers would be another possibility that can get both Republican senators turn in their blue slips. I would love for Jessica Elgin to be the nominee but I would have only picked her to pay back the senators if they didn’t work in good faith. A black woman, very progressive law professor in her late 30’s is who you get if you don’t want to work in good faith. But since they did I am fine with Doris Pryor & one of the two names I mentioned above for the Kanne seat.

      Liked by 1 person

  11. I’m still thinking through my list for Gavi’s question. But Roscoe Conkling may not have been a savior against corporate personhood.

    “Conk­ling argued to the Supreme Court in San Mateo County v. South­ern Pacific Rail Road that the 14th Amend­ment is not limited to natural persons. In 1882, he produced a journal that seemed to show that the Joint Congres­sional Commit­tee that draf­ted the amend­ment vacil­lated between using “citizen” and “person” and the drafters chose person specific­ally to cover corpor­a­tions. Accord­ing to histor­ian Howard Jay Graham, “[t]his part of Conk­ling’s argu­ment was a delib­er­ate, brazen forgery.”

    https://www.brennancenter.org/our-work/analysis-opinion/history-corporate-personhood

    The entire legal establishment endorsed corporate personhood, including basically every Supreme Court justice. Even progressive justices like Louis Brandeis didn’t really challenge corporate personhood.

    In his first year on the Supreme Court, Justice Hugo Black filed a solo dissent from this consensus and rejected the idea of corporate personhood. He stated in clear terms what the purpose of the 14th Amendment was supposed to be.

    “This amendment sought to prevent discrimination by the states against classes or races. We are aware of this from words spoken in this Court within five years after its adoption, when the people and the courts were personally familiar with the historical background of the amendment.
    “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. ”
    Yet, of the cases in this Court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of 1 percent invoked it in protection of the negro race, and more than 50 percent. asked that its benefits be extended to corporations. ”

    https://supreme.justia.com/cases/federal/us/303/77/

    It unfortunately took a former Deep South senator and a Ku Klux Klan member to expose the sad embarrassment the Supreme Court had become and eventually reroute it in the right direction.

    Like

  12. Still working on my list for Gavi’s question.
    But Roscoe Conkling may not have been an opponent of corporate personhood.

    “Conk­ling argued to the Supreme Court in San Mateo County v. South­ern Pacific Rail Road that the 14th Amend­ment is not limited to natural persons. In 1882, he produced a journal that seemed to show that the Joint Congres­sional Commit­tee that draf­ted the amend­ment vacil­lated between using “citizen” and “person” and the drafters chose person specific­ally to cover corpor­a­tions. Accord­ing to histor­ian Howard Jay Graham, “[t]his part of Conk­ling’s argu­ment was a delib­er­ate, brazen forgery.”

    https://www.brennancenter.org/our-work/analysis-opinion/history-corporate-personhood

    Basically the entire legal establishment endorsed corporate personhood, including all Supreme Court Justices. Even progressive justices like Louis Brandeis didn’t challenge corporate personhood in the late 19th and early 20th century.

    However in his first year on the Supreme Court, Hugo Black filed a solo dissent from this consensus and rejected the idea of corporate personhood. He stated in very clear terms the real purpose of the 14th Amendment.

    “This amendment sought to prevent discrimination by the states against classes or races. We are aware of this from words spoken in this Court within five years after its adoption, when the people and the courts were personally familiar with the historical background of the amendment.

    “”We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. ”

    Yet, of the cases in this Court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of 1 percent invoked it in protection of the negro race, and more than 50 percent. asked that its benefits be extended to corporations.”

    https://supreme.justia.com/cases/federal/us/303/77/

    It is sad that it took a former Deep South senator who was a member of the Ku Klux Klan to expose the embarrassment the Supreme Court had become and eventually to reroute it in the correct direction.

    Like

  13. This page keeps rejecting my comment on corporate personhood, perhaps due to the excepts from some of these websites. I will try again in parts.

    Roscoe Conkling may not have been a real opponent of corporate personhood.

    “Conk­ling argued to the Supreme Court in San Mateo County v. South­ern Pacific Rail Road that the 14th Amend­ment is not limited to natural persons. In 1882, he produced a journal that seemed to show that the Joint Congres­sional Commit­tee that draf­ted the amend­ment vacil­lated between using “citizen” and “person” and the drafters chose person specific­ally to cover corpor­a­tions. Accord­ing to histor­ian Howard Jay Graham, “[t]his part of Conk­ling’s argu­ment was a delib­er­ate, brazen forgery.”

    https://www.brennancenter.org/our-work/analysis-opinion/history-corporate-personhood

    Basically the entire legal establishment supported corporate personhood before the 1930s, including all Supreme Court justices. Even progressive ones like Louis Brandeis didn’t challenge corporate personhood in the late 19th and earliest 20th century.

    Liked by 1 person

    • @Shawn

      It’s not just you. Sometimes my comments don’t post, at least the same day, as well. It doesn’t happen often but it does happen. I haven’t been able to figure out any rhyme or reason as to why it happens. Perhaps the editor can give some insight as to why. Also it would be nice if there was a way we could edit our comments as well to fix spelling errors.

      Like

    • However, in his first year on the Supreme Court, Justice Hugo Black filed a solo dissent from this consensus and rejected the idea of corporate personhood. He stated in clear terms the real purpose of the 14th Amendment.

      “This amendment sought to prevent discrimination by the states against classes or races, We are aware of this from words spoken in this Court within five years after its adoption, when the people and the courts were personally familiar with the historical background of the amendment.

      “We doubt very much whether any action of a state not directed by way of discrimination against negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.”

      Yet, of the cases in this Court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of 1 percent invoked it in protection of the negro race, and more than 50 percent asked that its benefits be extended to corporations.”

      https://supreme.justia.com/cases/federal/us/303/77/

      It is sad that it took a former Deep South senator who was a member of the Ku Klux Klan to expose the embarrassment the Supreme Court was at the time and eventually would reroute it in the correct direction.

      Like

  14. Even though I’m not happy Biden nominated yet another Black man in his 60’s, I did find some more info on Jeffery P. Hopkins. His uncle was the Black man lynched in 1945 who’s case went all the way up to the Supreme Court. They overturned the sheriff’s conviction of the murder i “Screws v. United States”. That motivated Hopkins to want to become a judge. Here’s a couple of links…

    (https://www.youtube.com/watch?v=KS6zBt-tHoo)

    (https://en.wikipedia.org/wiki/Screws_v._United_States)

    Like

  15. We were just talking about comments not posting on this site & it just happened to me again… Lol

    I will write two separate post to see if that works.

    Even though I’m not happy Biden nominated yet another Black man in his 60’s, I did find some more info on Jeffery P. Hopkins. His uncle was the Black man lynched in 1945 who’s case went all the way up to the Supreme Court. They overturned the sheriff’s conviction of the murder i “Screws v. United States”. That motivated Hopkins to want to become a judge.

    Liked by 1 person

      • @Mitch

        First off I see my second post didn’t go through so not sure how long it will take but I had attached two links in it that would explain further. It basically in one of the links it explains an Ohio politician had pushed him into that direction.

        Like

    • Screws vs US illustrates the limits of civil libertarianism. Four of the five justices in the majority were liberals who felt were being consistent in striking down a vague law regarding intent (the fifth was a racist). Three of the four dissenters were conservatives. The fourth dissenter was Justice Frank Murphy, who was the most liberal justice on the court. I quickly skimmed over the dissent, but he seemed to argue that the spirit of the law was obvious, even if the letter of the law was vague, and that shouldn’t get in the way of a heinous crime by someone in power. I’m skeptical that Murphy would have felt the same way for a general criminal defense case.

      Things like this is why I would prefer plaintiff attorneys and those who represent regular people over criminal defense attorneys for judicial nominations (while still supporting them over a Big Law type). I mean, I wouldn’t really want to nominate a federal defender who defended a J6 insurrectionist or someone who committed a hate crime, even if they were required to do so.

      I’m surprised that a South Georgia jury convicted that sheriff in the first place.

      Like

      • @Shawn

        That waaaay my first thought to. I can’t believe an Albany, GA jury (I’m assuming all White) back then convicted the sheriff in the first place. Then for a liberal justice to write the opinion to overturn the jury’s decision after they did the hard part. Definitely a piece of history I hope judge Hopkins talks about in his hearing.

        Like

  16. Ok, Gavi here’s my (unranked) list by chronological order. I’ll try to keep commentary to a minimum to limit length and expand in a later post.

    Here’s part 1:

    1. Teddy Roosevelt supporting Taft as his successor in 1908 (which he realized four years later).
    Taft appointed six justices, few of them any good, and a couple in Van Devanter and Pitney who were horrible reactionaries. TRs three nominees were all pretty good for the time.

    2. FDR’s appointments of Felix Frankfurter and Robert Jackson to SCOTUS.
    I would have *loved* these selections at the time. Frankfurter was a founder of the ACLU, represented the NAACP, and was in general a really progressive law professor, would have been a dream choice for progressives. Basically a Laurence Tribe in that time period. Jackson was a strongly populist Attorney General and generally a progressive. Both turned out to be enormous disappointments on the Supreme Court, and basically made the intellectual arguments that conservatives used for decades.

    3. The selection of Harry Truman as VP in 1944 instead of other possibilities including William Douglas.
    Whatever you think of Truman’s other policies, his justices were terrible. He picked four cronies, all of the right of center. The best thing I can say is that three of his justices were replaced by Warren, Brennan, and Thurgood Marshall.

    4. LBJ arm twisting Arthur Goldberg to leave SCOTUS for Abe Fortas.
    This was horrible for many reasons, LBJs abuse of power, removing a progressive labor lawyer for a corporate lackey (albeit liberal), Fortas being rejected for Chief Justice and eventually resigning under Nixon. I think had Goldberg stayed on the court, he would have been confirmed to replace Warren, and you would have had a liberal-leaning SCOTUS until the late 80s or early 90s. (I suspect that Homer Thornberry would have left under Carter and been replaced by Shirley Hufstedler. Or it is possible that a more liberal SCOTUS results in Democrats losing in 1976.)

    5. Not making a stronger effort to defeat William Rehnquist in 1971.
    There were 42 no votes on his initial cloture. My guess is that if a serious attempt to defeat Rehnquist had been made, it may have been close. Rehnquist had quite a bit of baggage that could have been used if the liberals in the Senate tried. Heck Democrats could have even made the argument that it was time for a woman to be nominated.

    6. The election of Jimmy Carter instead of Gerald Ford in 1976.
    President Carter was incompetent, but I think any President would have looked bad in the 1977-1980 period. Given that Ford was pretty tolerable for a Republican, I think it would have been better if Ford had won in 1976, which would likely open the door for a Democratic President in 1980 and more progressive judges.
    My view is that it took the events of the late 1970s to make Reaganism possible (in the same way that it took the Great Depression to make New Deal liberalism possible.)

    Like

    • @Shawn

      Few people remember this, but Richard NIxon wanted to nominated a woman for the Supreme Court, In 1971, he wanted to nominate Mildred Lillie of the California Court of Appeals, but was stopped from doing so by the ABA, who rated her “unqualified.” The leader of the opposition within the ABA was none other than Lawrence Tribe. After the Nixon White House backed down, it nominated William Rehnquist instead.

      Like

      • @Mitch

        I did remember that, which is why I alluded to picking a woman.

        It is also is really unfair to blame Tribe for Lillie getting an unqualified rating from the ABA. Tribe wrote a report for the ABA with his negative viewpoint of Lillie, but they committee voted 11-1 to give an unqualified rating. That committee was led by Lawrence Walsh. Furthermore the ABA was still quite conservative back in 1971 (after being very conservative before the 1960s), and sexism likely played a huge role in such a rating. I mean Lillie’s qualifications were questionable, but it isn’t a clear unqualified rating. John Dean felt she was clearly qualified, moreso than O’Connor in 1981. The other judge that Nixon wanted to appoint, Herschel Friday, deserved an unqualified rating, but the ABA committee split 6-6 on him. That suggests sexism there.

        I don’t know about Lillie’s views other than she was tough on crime (which is what Nixon cared about), she was considered a conservative Democrat, but I’ve no sense of how she felt about other legal issues. She continued to serve until her death in 2002, so it’s really unclear when Lillie would have retired had she been appointed and confirmed.

        I’m certain she would have been an improvement over Rehnquist. I actually strongly suspect that if Rehnquist had not ended up at SCOTUS, he would have been caught up in Watergate.

        Liked by 1 person

  17. Part 2 on Gavi’s question.

    (add) to previous set:

    LBJ/Humphrey not publicly revealing Nixon’s shenanigans in sabotaging the Vietnam War peace talks.

    There are different accounts on this, whether LBJ never told Humphrey, or that he did and Humphrey refused to use it. Had this been made public, I think Humphrey could have won. And that means four Justices appointed by Humphrey (along with avoiding Nixon and a huge drop in trust in government).

    7. Thurgood Marshall retiring in 1991 instead of dying on the bench.
    This not only gave us a far right extremist in Clarence Thomas, but it may have robbed SCOTUS of a progressive dissenter (who would have replaced Marshall). The leading candidate for Marshall’s replacement under Clinton may have been Drew Days (solicitor general under Clinton).

    8. Complete lack of effort by the Democratic establishment to develop an alternate theory to “strict constructionism” and originalism after the Reagan/Bush nominees took over SCOTUS.
    There should have been a ACS in the 1990s, not starting in 2001. Such a group could have made the argument against the right-leaning SCOTUS, rather than live in the fantasy that you could simply convince a supposedly apolitical SCOTUS.

    9. The lack of attention by Clinton and Obama regarding lower court judicial nominations. Both of them should have put more political capital into judges.

    10. The inability of Clinton and Obama to put even a single SCOTUS justice who could articulate a progressive legal vision through dissents.
    This is important to build a vision that future generations can rally around and then later implement. Furthermore, it moves the Overton window so that more moderate center-left nominees are more difficult to oppose.

    11. Any number of things that resulted in Gore losing in 2000.

    12. Not letting the GOP just kill the judicial filibuster in 2005.
    I understand not doing it at the time, but in retrospect, I wish it had been done. It would have made it easier to confirm Obama’s nominees, and probably would have encouraged Obama to nominate more progressive nominees in general.

    13. Not pushing harder to stiffen Bush’s spine on Harriet Miers.

    14. Failure to get Goodwin Liu and Victoria Nourse nominated faster in Obama’s first two years. You can add not nominating DC Circuit nominees earlier (and not putting up Pamela Harris for the DC Circuit.)

    15. Leahy not disregarding the blue slip rule for circuit court nominees after the GOP didn’t do the same under Bush.

    16. Ginsburg not retiring in 2013/2014.

    17. DNC rigging the 2016 primary and insulting Sanders internally when Hillary was going to win the primary anyway. I think this is the primary reason why Hillary lost.

    18. This is arguable, maybe but Democrats filibustering Neil Gorsuch. Should have taken the agreement to allow for filibustering the next nominee. Not sure this would have worked though, Kavanaugh would have been filibustered, but I don’t know that actually helps Democrats in the 2018 Senate elections. But there’s a possibility that either Trump may have nominated someone slightly less objectionable (likely Thomas Hardiman).

    19. Biden not following a FDR strategy with this right-wing court.
    What needs to be done is to sign executive orders that SCOTUS would reject, and then use those ruling to rouse up outrage and build a case against SCOTUS.

    I will rank the top ten later.

    Liked by 1 person

    • Regarding #8, I would also add that not doing so made it easy for conservatives to attack those who are left of center as “judicial activists”. The flip side of this is that there was also not enough of an attempt to make the case that the right engages in judicial activism as much or more so than does the left.

      Like

    • I’m really surprised by senator Blumenthal‘s comments. Yes they have to follow the rules but they aren’t even following the Republican precedent. As Chris King said in the article, Republicans held hearings three straight weeks.

      I wasn’t surprised at all that senator Grassley wants to keep the same every other week schedule. Senator Durbin’s comments were encouraging.

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

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