Month: October 2022

Arun Subramanian – Nominee to the U.S. District Court for the Southern District of New York

Susman Godfrey partner Arun Subramaniam has spent the last fifteen years at one of New York’s most prominent white shoe law firms. He is now poised to become the first Indian American judge on the U.S. District Court for the Southern District of New York.

Background

Arun Subramanian graduated from Case Western Reserve University in 2001 and then from Columbia Law School in 2004. After graduating, Subramanian clerked for Judge Dennis Jacobs on the U.S. Court of Appeals for the Second Circuit and for Judge Gerard Lynch on the U.S. District Court for the Southern District of New York (Lynch, a former Columbia law professor, would later be elevated to the Second Circuit himself). Subramanian then clerked for Justice Ruth Bader Ginsburg on the U.S. Supreme Court (alongside future federal judges Eric Murphy (Kennedy), Dan Bress (Scalia), and future Senator Mike Lee).

Subramanian then joined the firm of Susman Godfrey, where he still serves as a partner.

History of the Seat

Subramanian has been tapped for a seat on the U.S. District Court for the Southern District of New York to a seat vacated by Judge Alison Nathan’s elevation to the Second Circuit on March 31, 2022. He was recommended for the position by Senate Majority Leader Chuck Schumer. See Tim Balk, Chuck Touts Three Judges for Fed Courts, Daily News, June 10, 2022.

Legal Career

Subramanian has spent his entire legal career post-clerkship at the firm of Susman Godfrey, where he has worked primarily in commercial litigation and advisory work. Subramanian’s work also included bankruptcy cases. See, e.g., Buchwald Capital Advisors LLC v. JP Morgan Chase Bank, N.A., 447 B.R. 170 (S.D.N.Y. Bankr. 2011).

Notably, Subramanian represented a class of plaintiffs suing Barclays and other banks for manipulating interest rates. See Maureen Farrell, Barclays Not Alone in Rate-Fixing Scandal, CNNMoney.com, July 3, 2012. Subramanian also represented the parents of DNC staffer Seth Rich in a suit against Fox News alleging that the network’s promotion of conspiracy theories about Rich’s death intentionally caused them emotional distress. See Rich v. Fox News Network LLC., 939 F.3d 112 (2d Cir. 2019).

In other matters, Subramanian has represented parties on the appellate level in New York state courts, see, e.g., Transparent Value, LLC v. Johnson, 93 A.3d 599 (N.Y. App. Div. 2012), and on the federal level. See, e.g., Gelboin v. Bank of Am. Corp., 823 F.3d 759 (2d 2015). Notably, Subramanian argued before the Federal Circuit, convincing the court to reverse the dismissal of a patent infringement action. See BASCOM Global Internet Servs. V. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016).

Writings and Statements

In his role as an attorney, Subramanian has occasionally commented in the media. For example, as part of his role in the Barclays lawsuit, Subramanian was quoted in an article discussing the manipulation of interest rates by big banks. See James O’Toole, Big Banks at Center of Interest Rate Probe, CNNMoney.com, Mar. 11, 2012. See also James O’Toole, Lawsuits Against Banks Loom in Libor Scandal, CNNMoney.com, July 6, 2012.

Political Activity

Subramanian has been a frequent donor to Democratic party candidates for office, giving more than $58000 over the last fifteen years, including a $10000 contribution to Governor Kathy Hochul’s campaign in 2022.

Overall Assessment

With a star-studded resume and extensive experience with the commercial litigation that makes up a large part of the Southern District of New York’s docket, Subramanian makes for a qualified, if conventional, judicial nominee.

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Anthony Johnstone – Nominee to the U.S. Court of Appeals for the Ninth Circuit

University of Montana Law Professor Anthony Johnstone has spent his career engaging with the law, including serving as Montana Solicitor General under then Attorney General Steve Bullock.

Background

Anthony Devos Johnstone was born in 1973 in Minneapolis, Minnesota. Johnstone graduated from Yale University in 1995 and from the University of Chicago Law School in 1999 before joining the New York office of Cravath Swaine & Moore.

In 2004, Johnstone moved to Montana to join the Attorney General’s Office. In 2008, Johnstone was selected to be Montana’s State Solicitor, where he served until 2011.

Since 2011, Johnstone has served as a professor at the University of Montana Blewitt School of Law.

History of the Seat

Johnstone has been nominated for a future vacancy that will open upon his former boss Thomas’ move to senior status upon confirmation of a successor. Originally recommended for the vacancy by Sen. Jon Tester, Johnstone was nominated after interviews with Tester and Sen. Steve Daines and with the White House.

Legal Career

After clerking for Judge Sidney Runyan Thomas, Johnstone started his career at the New York office of Cravath Swaine & Moore.

From 2004 to 2008, Johnstone worked for the Montana Attorney General’s Office. In this role, he advised on the language of ballot initiatives, including a proposed initiative to ban same sex marriage. See Bob Anez, Gay Advocacy Group Attacks Same-sex Marriage Ban, A.P. State & Local Wire, Apr. 26, 2004. He also worked on advisory opinions, including one stating that county voters had the right to vote on closing a garbage incinerator. See Draft Opinion: Voters Have Right to Decide Fate of Incinerator, A.P. State & Local Wire, June 22, 2004. In this role, Johnstone also defended the constitutionality of prospective ballot measures in court. See, e.g., Matt Gouras, Another Legal Challenge to Spending Cap Heard Thursday, A.P. State & Local Wire, Sept. 14, 2006. Johnstone also argued before the Montana Supreme Court regarding misconduct by trustees for the art collection of Alberta Bair. See Susan Gallagher, State Supreme Court Weighs Fate of Museum on Montana Ranch, A.P. State & Local Wire, Nov. 1, 2007.

From 2008 to 2011, Johnstone worked as Montana’s State Solicitor, serving as Montana’s primary lawyer in court. In this role, Johnstone argued a number of cases before the Montana Supreme Court, including a ruling in which the Montana Supreme Court ruled that Montanans had the right to assisted suicide. See Baxter v. Montana, 2009 MT 449 (2009). Johnstone also argued that gay couples were not entitled to spousal benefits under state law because the statute limited them to married couples (gay marriage being banned in Montana at the time). See Matt Volz, Gay Couples Argue for Same Rights as Wedded People, A.P. State & Local Wire, Jan. 26, 2011.

Since 2011, Johnstone has served as a law professor, focusing on issues of constitutional law.

Writings

As a law professor, Johnstone has written and spoken extensively on the law. We cover some of the topics he has covered below.

Election Law and Campaign Finance

Election law is one of Johnstone’s expertises. He has testified before the Senate in support of campaign finance restrictions invalidated by the Supreme Court in its Citizens United decision. See Richard Hanners, Federal Judge Rules Against State Campaign Finance Limits, Hungry Horse News, Oct. 4, 2012. He also argue in favor of a resolution calling Citizens United wrongly decided at a debate between the American Constitution Society and the Federalist Society. See Resolved: Citizens United Was Wrongly Decided, US Official News, May 4, 2015. He has also written on the negative impact of Citizens United on judicial elections. See Anthony Johnstone, A Past and Future of Judicial Elections: The Case of Montana, 16 J. App. Prac. & Process 47 (Spring 2015).

Criminal Law

On the criminal side, Johnstone commented on whether the Constitution’s Speedy Trial right applies to sentencing as well as trial. See Matt Volz, U.S. Supreme Court Takes Up Speedy Trial Fight in Montana Case, A.P. State & Local, Mar. 24, 2016.

First Amendment

Johnstone has been critical of campus “free speech zones,” arguing that they necessarily imply that there are certain areas on campus where free speech was not protected. See Claire Shinner, Legislation Aims to Bolster Campus First Amendment Rights, Montana Kaimin: University of Montana, Feb. 23, 2021. Johnstone has also criticized legislative proposals that prevent the removal of students from groups for harassment, noting that they may prevent the university from enforcing its policies. See Mariah Thomas, Free-Speech Legislation Raises Discrimination Concerns, Montana Kaimin: University of Montana, Mar. 2, 2021.

Overall Assessment

Given the extensive nature of Johnstone’s writings and media comments, there is plenty for opponents to mine. Nonetheless, the bulk of his writings and legal experience makes Johnstone hard to pigeonhole as an ideologue. If Democrats hold the Senate, he will likely be confirmed comfortably.

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P. Casey Pitts – Nominee to the U.S. District Court for the Northern District of California

Altshuler Berzon partner P. Casey Pitts has spent most of his career as a union-side labor lawyer. He is now poised to join the U.S. District Court for the Northern District of California, where he would be the only judge to identify as LGBTQ.

Background

Pitts got his B.A. from Yale University in 2003 and his J.D. from Yale Law School in 2008. After graduating, Pitts clerked for Judge Stephen Reinhardt on the U.S. Court of Appeals for the Ninth Circuit and then joined Altshuler Berzon LLP in San Francisco, serving currently as a Partner in the firm.

History of the Seat

Casey has been nominated to the U.S. District Court for the Northern District of California, to a seat vacated on December 15, 2021, by Judge Lucy Koh’s elevation to the Ninth Circuit.

Legal Experience

Pitts has spent his entire legal career at the left-leaning law firm Altshuler Berzon LLP (co-founded by Ninth Circuit liberal lion Marsha Berzon). At the firm, Pitts focused primarily on union-side labor law. Notably, Pitts represented the Writers Guild of America in a suit challenging talent agencies from accepting packaging fees from studios. See Writers Guild Suggests Judge’s Recusal in Agency Packaging Suit, Variety, May 1, 2019. The suit ended in a settlement. See Bryan Koenig, Writers Guild Cuts Deal With Last Talent Agency in Fee Suit, Law360, Feb. 8, 2021. Pitts also represented SEIU Local 668 in defending against a claim seeking repayment of union dues. See Bill Wichert, 3d Circ. Nixes Post-Janus Challenges to Union Dues, Law360, Jan. 19, 2021.

Among non-labor matters, Pitts argued before the California Court of Appeals on behalf of a class of plaintiffs challenging alleged false advertising on behalf of Apple Inc. See Justices Recharge iPhone Marketing Suit Against Apple, ICT Monitor Worldwide, Sept. 16, 2014. Pitts also represented a transgender employee fired by Tower Loan after he refused to sign a document stating that he was not in compliance with their personnel policies. See Civil Rights Groups Sue National Finance Company for Illegally Firing Transgender Employee, Targeted News Service, Apr. 13, 2015.

Statements and Writings

As a law student, Pitts authored an article critical of the military’s then policy of “Don’t Ask, Don’t Tell,” arguing that it hurts recruitment among the youth. See P. Casey Pitts, To Young People, “Don’t Ask, Don’t Tell” Means “Don’t Enlist,”, 116 Yale L.J. Pocket Part. 254 (November 14, 2006).

Overall Assessment

Pitts is facing a tight deadline to get confirmed by the end of the year. If not confirmed, Pitts’ confirmation would depend on Democrats keeping the Senate as it’s unlikely that a Republican senate would find him an acceptable nominee.

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Charnelle Bjelkengren – Nominee to the U.S. District Court for the Eastern District of Washington

The U.S. District Court for the Eastern District of Washington is poised to get a new judge, with the Biden Administration putting forward the nomination of Judge Charnelle Bjelkengren to replace Judge Salvador Mendoza.

Background

Charnelle Marie Bjelkengren received her B.A. from Mankato State University University in 1997 and a J.D. from Gonzaga University School of Law in 2000. Bjelkengren then served as an assistant attorney general for the Washington Attorney General’s Office.

In 2013, Bjelkengren became an administrative judge for the Office of Administrative Hearings with Washington State.

In 2019, Bjelkengren was appointed to be a Superior Court judge in Washington, where she currently serves.

History of the Seat

Bjelkengren has been nominated for the U.S. District Court for the Eastern District of Washington. This seat opened on September 16, 2022, when Judge Salvador Mendoza was elevated to the U.S. Court of Appeals for the Ninth Circuit.

Legal Experience

Between 2001 and 2013, Bjelkengren served as an assistant attorney general with the Washington Attorney General’s Office. Among her duties with the office, Bjelkengren defended the administrative suspensions of the licenses of drivers convicted of DUI. See, e.g., In re License Suspension of Richie, 113 P.3d 1045 (Wash. App. 2005). She also handled administrative disputes involving employment benefits. See, e.g., Markam Group, Inc. v. Employment Sec. Dep’t, 200 P.3d 748 (Wash. App. 2009).

Jurisprudence

From 2013 to 2019, Bjelkengren worked as an administrative law judge, working with the Employment Security Department and the Department of Social and Health Services. In 2019, Bjelkengren was appointed to the Spokane County Superior Court, becoming the first black female judge in Eastern Washington. See Will Campbell, Inslee Appoints 1st Black Female Judge in E. Washington, Spokesman Review, Apr. 11, 2019.

Overall Assessment

Bjelkengren has attracted little controversy throughout her career, and that is likely to continue in the confirmation process.

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Judge Gordon Gallagher – Nominee to the U.S. District Court for the District of Colorado

Judge Gordon Gallagher, who has served as a federal magistrate judge for the past decade, is Biden’s fourth nominee to the federal district court bench in Colorado.

Background

Gordon Gallagher attended Macalester College in St. Paul, graduating in 1991. He then received a J.D. from the University of Denver Strum Law School in 1996.

After graduating, Gallagher spent two years at Underhill and Underhill P.C. and then joined the Mesa County District Attorney’s Office. In 2000, Gallagher became a solo practitioner.

In 2012, Gallagher was appointed to be a U.S. Magistrate Judge and has served as such since.

History of the Seat

Gallagher has been nominated for a vacancy on the U.S. District Court for the District of Colorado. This seat will open on February 10, 2023 when Judge William Martinez takes senior status. Gallagher was previously recommended by Colorado Senators Michael Bennet and John Hickenlooper to replace Judge Christine Arguello, but fellow magistrate judge Nina Wang was chosen instead. Gallagher was then nominated to replace Martinez.

Legal Experience

Gallagher began his legal career at the firm of Underhill and Underhill P.C. before spending two years as a state prosecutor. However, the vast majority of his pre-bench career was spent as a solo practitioner, where he worked primarily in criminal defense. Among his notable cases, Gallagher represented Cheyenne Corbett, a teen mom charged with murder for the death of her baby shortly after it was born. See Teen Mom Charged with Murder Invoked Privacy Law, A.P. State & Local Wire, July 28, 2006.

Jurisprudence

Gallagher has served as a federal magistrate judge since his appointment in 2012. In this role, he presides by consent over civil matters and misdemeanors, assists district judges with discovery and settlement, and writes reports and recommendations on legal issues. Among the cases that he presided over, Gallagher handled a number of cases involving damage to federal lands. For example, he found Scott Wagner guilty of damage for building an unapproved pond partially on federal property. See Man Found Guilty for Altering and Damaging Forest Service Lands Within the Gunnison National Forest, Targeted News Service, Dec. 7, 2012. In another case, Gallagher sentenced Earl Bennett to a year of probation and $30000 in restitution for illegally building a road on federal property. See Man Sentenced for Illegally Building Road on U.S. Forest Service Land, U.S. Fed News, Aug. 27, 2018.

Writings and Statements

Gallagher has made a couple of media statements in his role as an attorney. For example, in 2003, Gallagher commented on the performance of Pamela Mackey, the defense attorney for Kobe Bryant in his rape trial. See Mike Wiggins and Michael C. Bender, Questions of Ethical Propriety Arise Over Bryant’s Defense, Cox News Service, Oct. 10, 2003.

Overall Assessment

Throughout his legal career, Gallagher has held a variety of positions, including as a prosecutor, a defense lawyer, and a judge. As such, his qualifications for a federal judgeship are undeniable. If Gallagher is given a hearing this Congress, he will likely be confirmed easily. However, given that Martinez is not taking senior status until next February and that a Republican senate might find Gallagher an acceptable nominee, it wouldn’t be surprising if Democrats prioritized other judges.

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Jabari Wamble – Nominee to the U.S. Court of Appeals for the Tenth Circuit

The Kansas-based vacancy on the Tenth Circuit vacated by Judge Mary Briscoe in March 2021 is the oldest pending appellate vacancy on the federal judiciary. After eighteen months without a nominee, the White House has put forward the name of federal prosecutor Jabari Wamble.

Background

Jabari Brooks Wamble got a B.A. from the University of Kansas in 2002 and a J.D. from the University of Kansas School of Law in 2006. After graduating, Wamble spent two years in the Johnson County District Attorney’s Office before becoming an assistant attorney general in Kansas.

In 2011, Wamble joined the U.S. Attorney’s Office for the District of Kansas and has served there since.

Wamble is married to Marissa Cleaver, the daughter of U.S. Representative Emanuel Cleaver from Kansas City, Missouri.

History of the Seat

Wamble was tapped for a Kansas seat on the U.S. Court of Appeals for the Tenth Circuit. The seat was vacated by Judge Mary Briscoe’s move to senior status on March 15, 2021.

Legal Career

Wamble has spent his entire career in criminal prosecution, albeit at three different levels. He started his career at the Johnson County District Attorney’s Office. From 2007 to 2011, Wamble served in the Kansas Attorney General’s office. While at the Attorney General’s office, Wamble defended the conviction of Oliver McWilliams for Medicaid fraud. See State v. McWilliams, 283 P.3d 187 (Kan. 2012). While the Court of Appeals reversed McWilliams’ conviction, the Kansas Supreme Court reinstated it over the dissent of Justice Johnson.

Since 2011, Wamble has served as a federal prosecutor for the U.S. Attorney’s Office for the District of Kansas. Among his notable prosecutions with the office, Wamble prosecuted Richard Ballard, who pleaded guilty to wire fraud for collecting investment for environmentally friendly bottled water and pet chews, and then using the funds for personal use.

Wamble has also briefed and argued a number of appeals before the Tenth Circuit. For example, he was counsel of record in a suit that affirmed the defendant’s conviction for failing to pay child support. See United States v. Fuller, 751 F.3d 1150 (10th Cir. 2014).

Overall Assessment

Despite his youth, Wamble has built a solid reputation during his legal career, which likely speaks to Kansas Senator Jerry Moran’s relatively positive reaction to the nomination of a young Democrat for the Kansas seat. See Hannah Albarazi, Biden’s 10th Cir. Pick Seen as Humble Yet Savvy Prosecutor, Law360, Aug. 11, 2002. While some may criticize Wamble for having leapfrogged more experienced candidates due to his connection to Cleaver, there is little to criticize in Wamble’s record itself. If Democrats make his nomination a priority, Wamble will likely be confirmed before the end of the Congress.

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Judge DeAndrea Benjamin – Nominee to the U.S. Court of Appeals for the Fourth Circuit

Having lost a bitter battle to join the South Carolina Court of Appeals last year, Judge DeAndrea Benjamin has now been nominated for a seat on the U.S. Court of Appeals for the Fourth Circuit.

Background

Born DeAndrea Gist in Columbia, South Carolina, in 1972, Benjamin received a B.A. from Winthrop University in 1994 and a J.D. from the University of South Carolina Law School in 1997. After graduating, Benjamin clerked for Judge L. Casey Manning on the Fifth Judicial Circuit of South Carolina. She then spent two years at the Fifth Judicial Circuit Solicitor’s Office and another two years at the South Carolina Attorney General’s Office before opening her own practice in 2001.

While practicing, Benjamin also worked part-time as a Columbia city judge and on the Juvenile Parole Board. In 2010, Benjamin narrowly lost an election in the South Carolina legislature to become a family court judge to Gwendolyn Young Smalls. See Small Bests Benjamin for Family Court Judge, S.C. Politics Today, Feb. 3, 2010. In 2011, Benjamin was appointed to be a Circuit Judge on the Fifth Judicial Circuit in a unanimous vote. See Wife of Columbia Mayor Elected Judge, A.P. State & Local Wire, Feb. 3, 2011.

Benjamin’s husband, Steve Benjamin is a prominent South Carolina Democrat who lost a race for Attorney General to (now Governor) Henry McMaster in 2002 and served as Mayor of Columbia from 2010 to 2022. In 2010, during the mayoral election, the Benjamins were criticized for listing two primary residences of their tax forms, which they explained was because they moved. See Tax Wars Dominate Capital City Mayoral Race, FITSNews For You, Apr. 17, 2010.

In 2013, Benjamin’s brother Donald Gist Jr. was tragically shot and killed in Charlotte, N.C. See SC Mayor’s Brother-in-Law Killed in Charlotte, A.P. Online, Dec. 7, 2013.

In 2021, Benjamin was up for a seat on the South Carolina Court of Appeals but lost after opposition from conservatives critical of her husband. See Judge and Columbia Mayor’s Wife Loses Partisan Judicial Race, A.P. State & Local, Feb. 3, 2021. The legislature selected Judge Jay Vinson instead.

History of the Seat

Benjamin has been nominated to replace U.S. Circuit Henry Floyd, who moved to senior status on December 31, 2021. Benjamin was recommended for the vacancy by U.S. Rep. Jim Clyburn, who is close to the Biden Administration.

Legal Experience

Benjamin has held a variety of positions throughout her legal career. She started her career at the Fifth Judicial Circuit Solicitor’s Office, where she handled criminal prosecutions in Richland and Kershaw counties. Subsequently, at the South Carolina Attorney General’s Office, she continued criminal prosecutions, including the sexual assault prosecution of York County Sheriff’s Deputy Tommy Benfield Sr. See Former Sheriff’s Deputy Indicted on Sex Charges, A.P. State & Local Wire, Sept. 23, 2000.

From 2001 to 2011, Benjamin worked as a solo practitioner in Columbia. Among the cases she handled during this time, Benjamin represented James McKinney, a teacher who sued an investigator with Richland County for arresting him on warrants not supported by probable cause. See McKinney v. Richland Cnty. Sheriff’s Dep’t, 431 F.3d 415 (4th Cir. 2005). After Judge Margaret Seymour denied summary judgment for the defendants, the Fourth Circuit reversed, finding that the defendants were entitled to qualified immunity. See id. at 419.

Benjamin also handled a number of employment discrimination suits, including that of Ada Irene Dawson, an African-American FBI agent who sued for racial discrimination, a hostile work environment, and retaliation. See Dawson v. United States, 549 F. Supp. 2d 736 (D.S.C. 2008). Benjamin also represented Beverly Mahomes who sued the U.S. Postal Service for racial discrimination after her termination. See Mahomes v. Potter, 590 F. Supp. 2d 775 (D.S.C. 2008).

Jurisprudence

Benjamin has served as a South Carolina Circuit Court judge since her election in 2011. In this role, she serves as a trial judge handling both civil and criminal matters for the counties of Richland and Kershaw.

Among her criminal cases, Benjamin has shown a willingness to hand out harsh sentences. For example, she sentenced Brett Parker to two terms of life in prison after he was convicted of killing his wife and his business partner. See Judge Sentences Columbia Man to 2 Life Terms, A.P. State & Local Wire, May 29, 2013. She also sentenced Christopher Harmon to 20 years in prison for kidnapping and sexual assault. See North August Man Sentenced to 20 Years for 2017 Kidnapping, Sexual Assault Case, Aiken Standard, Dec. 19, 2019.

On the civil side, Benjamin dismissed a suit challenging South Carolina’s ban on online eye exams, finding the company had failed to plead an injury sufficient to give them standing to challenge the law. See Judge Dismisses Case Challenging Online Eye Exam Ban, Columbia Regional Business Report, Jan. 30, 2018. The South Carolina Court of Appeals reversed, finding that the requirements for standing had been met. See Opternative, Inc. v. S.C. Bd. of Med. Examiners, 859 S.E.2d 263 (S.C. App. 2021).

Benjamin also sat by designation on the South Carolina Supreme Court. See, e.g., Burch v. Burch, 717 S.E.2d 757 (S.C. 2011).

During her time on the circuit court bench, some of Benjamin’s decisions were appealed to the South Carolina Court of Appeals and the South Carolina Supreme Court. The majority of these decisions were affirmed. See, e.g., State v. Brown, 740 S.E.2d 493 (S.C. 2013) (affirming jury instructions given in larceny conviction). Some of the decisions that were reversed are highlighted below:

Lee v. Univ. of S.C. (757 S.E.2d 394 (S.C. 2014)) – The plaintiff contracted with the University to give him an opportunity to purchase football and basketball tickets throughout his lifetime in consideration for taking out a life insurance policy with the University as a beneficiary. The University subsequently began imposing seat license fees on all purchases, which the plaintiff challenged as a breach of contract. Benjamin ruled that the plaintiff was not being denied his contractual right of purchase by imposing the licensing fees. The South Carolina Supreme Court reversed 4-1, finding that the payment of the licensing fee constituted an additional condition the University attempted to impose on a contract that did not require it. Justice Costa Pleicones would have affirmed.

Sanders v. State (773 S.E.2d 580 (S.C. 2015)) – The Defendant in the case agreed to waive all collateral review of any conviction in exchange for the state agreeing not to seek the death penalty. When the Defendant subsequently attempted to collaterally challenge his conviction, Benjamin dismissed the challenge under the agreement. The South Carolina Supreme Court reversed, finding that Benjamin should have convened an evidentiary hearing to confirm if the Defendant’s attorney was constitutionally defective in advising him to consent to the agreement.

Lucero v. State (777 S.E.2d 409 (S.C. App. 2015)) – The Defendant challenged her conviction for drug trafficking collaterally after an immigration judge ordered her removed based on the conviction. Benjamin granted post-conviction relief based on the Supreme Court’s decision in Padilla v. Kentucky, which found that defense counsel needed to advise non-citizens of immigration consequences from their pleas. The Court of Appeals reversed, finding that the Padilla decision could not be applied retroactively to the Defendant’s case.

State v. Stukes (787 S.E.2d 480 (S.C. 2016)) – The Defendant was convicted of rape after a trial in which the complainant claimed that she was assaulted while the Defendant argued that the intercourse was consensual. Benjamin advised the jury, consistent with the statute, that the complainant’s statement need not be corroborated to be believed. The South Carolina Supreme Court reversed 3-2, finding that, while the instruction was an accurate statement of the law, it confused the jury in this instance and was impermissible. Justice Kittredge dissented, finding any error to be harmless.

State v. Herndon (845 S.E.2d 499 (S.C. 2020)) – The Defendant, after a conviction for voluntary manslaughter, challenged Benjamin’s refusal to give the jury a Logan charge, or an instruction advising them as to how they should consider circumstantial evidence, as opposed to direct evidence. The South Carolina Supreme Court reversed, finding that, as the state’s evidence was almost entirely circumstantial, the charge was required to be given.

Overall Assessment

Benjamin has had her share of judicial disappointment, including losing bids for the Family Court and the South Carolina Court of Appeals. While Benjamin may well draw opposition in her bid for the Fourth Circuit, her confirmation will largely be tied to what Sen. Lindsay Graham chooses to do. Graham, who has generally been one of the most friendly Republican senators to Biden nominees, could grease the path for his home-state nominee if he supports her. If Graham chooses to oppose Benjamin, however, it is unlikely that she would be confirmed.

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Judge Jeffery Hopkins – Nominee to the U.S. District Court for the Southern District of Ohio

Judge Jeffery Hopkins has served as a federal bankruptcy judge in Ohio for twenty-five years and is now poised to gain a lifetime appointment to the district court bench.

Background

Born in Georgia, Jeffery Hopkins was drawn to the law because an uncle, Robert Hall, was murdered by Georgia sheriff Claude Screws while trying to execute an arrest. Screws’ conviction was later overturned by the U.S. Supreme Court. See Screws v. U.S., 325 U.S. 91 (1945). Hopkins subsequently received a B.A. from Bowdoin College in 1982 and his J.D. from the Ohio State University Moritz College of Law in 1985. After graduation, Hopkins was hired as a clerk by Judge Alan Norris on the Ohio Court of Appeals. When Norris was appointed by President Reagan to the U.S. Court of Appeals for the Sixth Circuit the following year, Hopkins followed him as a clerk on that court.

Subsequently, Hopkins spent three years at Squire Sanders & Dempsey LLP (now Squire Patton Boggs) before joining the U.S. Attorney’s Office for the Southern District of Ohio.

In 1996, Hopkins was appointed to be a U.S. Bankruptcy Judge, and has served as such ever since.

In 2009, Hopkins was recommended to replace Judge Sandra Beckwith on the U.S. District Court for the Southern District of Ohio, alongside U.S. Magistrate Judge Timothy Black and Montgomery County Court of Common Pleas Judge Mary Wiseman. See Jessica Wehrman and Steve Bennish, Wiseman Finalist for Bench; Sen. Sherrod Brown Will Meet With Her, Two Others Before Recommending His Choice For Federal Court Vacancy, Dayton Daily News, June 26, 2009. However, the Obama Administration nominated and appointed Black instead after he was the final choice of Ohio senators.

History of the Seat

Hopkins has been nominated for a seat on the U.S. District Court for the Southern District of Ohio. This seat was vacated on May 18, 2022, when Judge Timothy Black moved to senior status. Hopkins applied with a selection commission put together by Ohio Senators Sherrod Brown, a Democrat, and Rob Portman, a Republican and was recommended to the White House by the senators. He was nominated on July 29, 2022.

Legal Experience

After clerking for Judge Norris on the state and federal benches, Hopkins joined the Cincinnati office of Squire Sanders & Dempsey LLP (now Squire Patton Boggs), where he represented the Bexley City School District in fighting a teacher’s suit seeking a continued teaching contract. See State ex rel. Fraysier v. Bexley City Sch. Bd. of Educ., 583 N.E.2d 1000 (Ohio App. 1989).

Hopkins then shifted to the U.S. Attorney’s Office, where he worked in the Civil Division. Hopkins would become Chief of the Civil Division by March 1993. Among the cases he handled there, Hopkins represented the government in bankruptcy matters. See, e.g., In re Ernst & Young, Inc., 129 B.R. 147 (S.D. Ohio Bankr. 1991).

Jurisprudence

Since 1996, Hopkins has served as a U.S. Bankruptcy Judge on the U.S. District Court for the Southern District of Ohio, which covers much of Southern Ohio. In that capacity, Hopkins reviews federal bankruptcy filings and proceedings.

Among the cases he handled, Hopkins approved the sale of Cambridge Eye Associates and Douglas Vision Worlds, two Cincinnati based vision companies to Davis Vision Inc., a New York based company. See Ben Fidler, Davis Vision Wins Sight Resource, The Deal, Apr. 12, 2005.

Among his notable rulings, Hopkins allowed Troulies Ledbetter to discharge one of his student loans through the bankruptcy process, finding that it imposed an undue hardship. See In re Ledbetter, 254 B.R. 714 (S.D. Ohio Bankr. 2000). However, he declined to discharge a second loan that Ledbetter held, finding it ineligible for discharge. See id. at 717. In another ruling, Hopkins permitted the discharge of an obligation to hold a spouse harmless on joint debts, finding that it did not constitute a non-dischargeable award of alimony. See Davis v. Davis, 261 B.R. 659 (S.D. Ohio Bankr. 2001).

Overall Assessment

Recommended for the federal bench by Ohio’s bipartisan duo of senators, Hopkins should see little trouble with a comfortable confirmation. If Hopkins is not confirmed this Congress however, the election of a new senator to replace Portman in Ohio may complicate his path to the bench.

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Judge Daniel Calabretta – Nominee to the U.S. District Court for the Eastern District of California

Having filled two vacancies on the U.S. District Court for the Eastern District of California, Biden is now seeking to fill the last with state judge Daniel Calabretta, who would be, if confirmed, the first LGBTQ judge on the Eastern District’s bench.

Background

Born Daniel Joe Powell, Calabretta received a B.A. from Princeton University in 2000 and a J.D. from the University of Chicago Law School in 2003. He then clerked for Judge William Fletcher on the U.S. Court of Appeals for the Ninth Circuit and then for Justice John Paul Stevens on the U.S. Supreme Court. His class on the Supreme Court that session included future federal judges Julius Richardson (Rehnquist) and Martha Pacold (Thomas). After his clerkships, Calabretta joined Munger, Tolles & Olson as an associate. In 2008, Calabretta joined the California Attorney General’s Office under Jerry Brown and then joined Brown’s gubernatorial staff in 2013.

In 2018, Brown named Calabretta to the Sacramento County Superior Court, where he has served since.

History of the Seat

Calabretta has been nominated to the U.S. District Court for the Eastern District of California, to a seat vacated on April 27, 2022 by Judge John Mendez.

Legal Experience

Calabretta started his legal career as a law clerk on the Ninth Circuit and the U.S. Supreme Court but then spent three years at Munger Tolles and Olson, a firm that has produced numerous federal judges, including Ninth Circuit Judges Paul Watford, John Owens, Michelle Freidland, Dan Collins, and Gabriel Sanchez, as well as Justice Brett Kavanaugh.

Calabretta subsequently spent five years at the California Attorney General’s Office. During that time, Calabretta represented the Attorney General’s office in the suit challenging California’s ban on same sex marriage. See Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011). He also represented the state in a lawsuit regarding the funding and construction of a state prison hospital. See Rich Saskal, Receiver Offers California Break In Prison Health Care Lawsuit, The Bond Buyer, Oct. 7, 2008. Calabretta also argued before the Ninth Circuit in this role, defending California’s practice of collecting DNA samples from those facing felony charges. See Paul Elias, Calif. AG Defends DNA Samples from Felony Arrestees, A.P. State & Local Wire, July 13, 2010.

Finally, Calabretta spent five years working for Governor Jerry Brown as deputy legal affairs secretary before his appointment to the bench.

Jurisprudence

Since 2018, Calabretta has served as a Superior Court judge in Sacramento County. In this role, she presides over civil, criminal, and domestic cases. Calabretta currently serves as presiding judge on the Juvenile Court.

Writings and Statements

While at Munger, Calabretta co-authored a regular column with fellow Munger lawyers and Supreme Court clerks Friedland (O’Connor), Jeff Bleich (Rehnquist), and Aimee Feinberg (Breyer) discussing the Supreme Court. For example, one column from 2007 discusses the lack of cameras at the Supreme Court, suggesting changes that the Court can take to be more accessible such as releasing oral argument recordings on the same day of the argument (the Supreme Court currently releases transcripts the same day and audio at the end of the week). See Jeff Bleich, Michelle Freidland, Aimee Feinberg, and Daniel Powell, Supreme Court Watch: A Court Without Cameras, 33 San Francisco Att’y 52 (Winter 2007).

In another column, the foursome discuss the jurisprudence of Justice John Paul Stevens, describing him as “independent and hard to categorize politically.” See Jeff Bleich, Michelle Freidland, Aimee Feinberg, and Daniel Powell, Supreme Court Watch: John Paul Stevens – An Independent Voice, 33 San Francisco Att’y 44 (Spring 2007).

In a notable column, the authors discuss Chief Justice Roberts’ commitment to precedent, noting: “In a series of high-profile decisions this term, the Court expressed continued respect for precedents while effectively overruling them or limiting them to their narrow facts.” Jeff Bleich, Michelle Freidland, Aimee Feinberg, and Daniel Powell, Supreme Court Watch: Stealth Overrulings – Overturning Precedent Without Saying So, 33 San Francisco Att’y 43 (Fall 2007). The column goes on to discuss a number of rulings that go against prior precedent, without expressly overruling them, including the Gonzales v. Carhart decision that upheld a ban on “partial-birth abortion” seven years after the Court overruled such a ban in Stenberg v. Carhart.

Overall Assessment

The Eastern District of California has consistently been one of the most overworked courts in the country, and one desperately in need of new judges. As such, Calabretta’s nomination is likely welcome news to the court’s judges. Furthermore, Calabretta brings to the job both lawyerly and judicial experience and would likely be deemed to be well qualified for the bench.

However, Calabretta’s biggest enemy in his confirmation this Congress is time. As he is on the agenda for a Judiciary hearing this week, he should be able to be confirmed before the end of the year. If he is not, his fate depends on the composition of the new Senate.

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Judge Rita Lin – Nominee to the U.S. District Court for the Northern District of California

San Francisco County Superior Court Judge Rita Lin would, if confirmed, be the first Chinese American woman on the U.S. District Court for the Northern District of California.

Background

Lin got her B.A. from Harvard University in 2000 and her J.D. from the Harvard Law School in 2003. After graduating, Lin clerked for Judge Sandra Lynch on the U.S. Court of Appeals for the First Circuit and then joined the San Francisco office of Morrison & Foerster. In 2014, she became an Assistant U.S. Attorney with the U.S. Attorney’s Office for the Northern District of California.

In 2018, Governor Jerry Brown appointed Lin to the San Francisco County Superior Court, where she has served since.

History of the Seat

Lin has been nominated to the U.S. District Court for the Northern District of California, to a seat vacated on May 17, 2022, by Judge Edward Chen.

Legal Experience

Lin started her legal career at the San Francisco office of Morrison & Foerster. Among the matters she handled at the firm, Lin represented Karen Golinski in a suit to seek spousal benefits for her wife. See Pam Spaulding, Lambda Legal Sues U.S. OPM on Behalf of Fed Lesbian Employee Whose Wife Was Denied Insurance, Pam’s House Blend, Jan. 20, 2010. The suit ended in Judge Jeffrey White ruling that the Defense of Marriage Act was unconstitutional, which was echoed by the U.S. Supreme Court in U.S. v. Windsor. See Aaron Kase, Defense of Marriage Act Thrown Out By Supreme Court, Lawyers.com, June 26, 2013.

From 2014 to 2018, Lin worked as a federal prosecutor in the Northern District of California. In this position, Lin prosecuted Melinda Van Horne for environmental damage to federal lands from her cultivation of marijuana, ending with Van Horne pleading guilty and receiving a 12 month prison sentence. See Whitehorn Woman Sentenced to 12 Months Imprisonment for Environmental Damage from Marijuana Grow on National Conservation Land, States News Service, Aug. 3, 2016.

Jurisprudence

Since 2018, Lin has served as a judge on the San Francisco County Superior Court. In this role, Lin presides over trial court matters in criminal, civil, family, and other state law matters. Lin also presides over preliminary hearings that see if sufficient evidence exists to proceed on felony charges. See, e.g., Adam Ruthenbeck, Deterring Theft By Encouraging It, The People’s Vanguard of Davis, Oct. 7, 2019 (noting that Judge Lin found probable cause for bike theft charges).

Statements and Writings

Lin has sometimes made media statements regarding the law and policy. For example, as an undergraduate student, she supported a protest against clothing company Guess? due to the conditions the clothes were manufactured in. See Breezy Tollinger, Harvard Students Protest Labor Conditions at Guess?, University Wire, Sept. 25, 1998.

Overall Assessment

With experience on both the civil and criminal side, as well as time on the bench, Lin would, despite her youth, be deemed qualified for a federal judicial appointment. Lin may draw opposition based on her pro bono representations with Lambda Legal but, if she gets a hearing this Congress, Lin should be confirmed by the end of the year.

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