Month: November 2022

The Unexpected Opportunity – Assessing the Landscape of Judicial Vacancies

While the Georgia runoff still awaits, as of the writing of this article, Democrats have defied political history and maintained their razor-thin Senate majority past the midterm elections. With the loss of the House, Democrats are unlikely to pass transformative legislation in the next two years, freeing the Senate to prioritize nominations (where the House has no role). Court watchers will likely welcome this, as, despite historic successes with their razor-thin majority, the Biden Administration has little time to rest if it intends to fill a sizeable proportion of the 100+ lower court vacancies currently pending in the federal judiciary. Currently, there are sixteen circuit court vacancies and ninety-seven district court vacancies pending (including seats announced to be vacated but currently still full). In comparison, 56 judicial nominees are currently before the senate, twelve to circuit courts and 44 to district courts. As the Biden Administration and Senate Democrats turn to nominations and confirmations, it’s useful to look again at the current landscape.

As a reminder, the process for choosing circuit and district court nominees is fairly different. After the practice of requiring blue slips for appellate nominees was terminated during the Trump Administration, the Administration is under no obligation to secure pre-approval from home state senators before the nominee can receive a hearing. However, in practice, the Administration is still incentivized to consult with home state senators, which can slow down the nomination process, particularly in states with Republican senators.

Unlike circuit court vacancies, district court seats still require home state approval in order to be confirmed. This means that the ball is largely in the senators’ court in terms of naming nominees. This doesn’t mean that the Administration is completely absent from the process. It is still responsible for prodding senators, negotiating agreements, and choosing the right candidate. In fact, the Administration started right off the gate with an announcement that it expected recommendations for vacancies within 90 days of the announcement. This makes it all the more surprising the sheer number of district court seats that sit without nominees today.

This split is less surprising in states that only have Republican Senators, a group which includes thirty-five district court vacancies without nominees: six in Florida; five in Texas; three in Indiana and Louisiana; two each in Alabama, Missouri and Oklahoma; and one each in Alaska, Arkansas, Idaho, Kansas, Kentucky, Nebraska, North Carolina, South Carolina, South Dakota, Tennessee, Utah, and Wyoming. Many of the home state senators in these states have been fairly open about their unwillingness to work with the Administration on a nominee. However, others have been more willing to be involved, with Iowa senators, for example, recommending U.S. Magistrate Judge Stephen Locher, a young Democrat, to the bench (Locher was swiftly and unanimously confirmed). The lone district court nominee in a 2-Republican state is also the most recent, Scott Colom in Mississippi.

Similarly, in states with split delegations, the White House understandably needs to move with the support of home state Republican senators. It has had mixed luck in the states it has tried this with. Ohio Sen. Rob Portman returned blue slips for three nominees who were confirmed (one more remains pending). Similarly, the White House was able to reach a four nominee deal with Sen. Pat Toomey in Pennsylvania that included a nominee of his choice. In contrast, Sen. Ron Johnson has chosen to block a nominee that he previously signed off on.

Perhaps the most surprising in terms of vacancies without nominees are blue states or territories, where Democratic senators would presumably be incentivized to send recommendations quickly: yet, sixteen district court vacancies from blue states are nomineeless today, including four from California, three from New Jersey, two each from Connecticut, Illinois, and Michigan, and one each from Colorado, Maryland, and New York. A summary of this landscape follows:

D.C. Circuit – 1 vacancy out of 11 judgeships (one nominee pending)

The so-called “second highest court in the land”, the D.C. Circuit was the site of Biden’s first appointee when Jackson was confirmed to the court last June, a mere two months after her nomination. However, since that haste, a second vacancy languished for more than a year, taking nearly nine months after Judge David Tatel announced his departure from active status before Judge Michelle Childs was nominated, and taking Childs eight months to be confirmed. Jackson’s elevation to the Supreme Court reopened another vacancy, and the White House moved more quickly, elevating U.S. District Judge Florence Pan (confirmed in September). A fourth nominee, Brad Garcia remains pending on the Senate floor to fill the last remaining vacancy on the court, vacated by Judge Judith Ann Wilson Rogers.

The only district court that reports to the D.C. Circuit is the U.S. District Court for the District of Columbia. The 15-judgeship court has one current vacancy, from Pan’s elevation, and one future vacancy, with Judge Colleen Kollar-Kotelly taking senior status upon confirmation of a successor. Nominees are pending for both vacancies with Ana Reyes currently awaiting a floor vote and Judge Todd Edelman having received a Judiciary Committee hearing last week.

First Circuit – 2 vacancies out of 6 judgeships (one nominee pending)

The smallest court of appeals in the country was also the sole geographically-based court not to see a single Trump appointment. Biden has already named Judge Gustavo Gelpi and Public Defender Lara Montecalvo to the court. Additionally, reproductive rights attorney Julie Rikelman is pending a vote before the Senate Judiciary Committee to replace Judge Sandra Lynch. The final seat, based in New Hampshire, was vacated by Judge Jeffrey Howard nearly nine months ago, and lacks a nominee. Given that New Hampshire has two Democratic senators, the lack of a nominee is puzzling.

The district courts covered by the First Circuit have five pending judicial vacancies, all of which have nominees. The District of Massachusetts has three current vacancies and three nominees pending, two of whom already have hearings.

The District Court for the District of Puerto Rico is down two judges, with nominees to fill the seats already on the Senate floor. A final Senate vote on Judge Camille Velez-Rive is expected next week, which should leave Judge Gina Mendez-Miro as the sole pending P.R. nominee.

Second Circuit – 1 vacancy out of 13 judgeships (one nominee pending)

Having replaced five left-leaning judges on the Second Circuit, the Biden Administration has already had a significant impact on the court. However, Justice Maria Araujo Kahn, nominated to replace 81-year-old conservative Jose Cabranes, remains pending in the Senate Judiciary Committee and has a long line of nominees ahead of her to be confirmed.

Connecticut, which saw three Biden appointees hit the bench last year, is one of the worse blue states when it comes to nomineeless vacancies, with two of the eight active judgeships vacant and no nominees on the horizon.

Meanwhile, the district courts in New York are also shortstaffed, with nine vacancies among them. The hardest hit is the Eastern District of New York, which has four vacancies out of sixteen judgeships, The bright side for the White House is that eight of the nine vacancies have nominees pending. The down side is that only three of the nominees are currently on the Senate floor (with one, Anne Nardacci, expected to be confirmed next week). Two of the longer pending nominees, Southern District of New York picks Dale Ho and Jessica Clarke, are currently bottled up in Committee, pending a discharge vote. Three more await hearings.

Third Circuit – 2 vacancies out of 14 judgeships (two nominees pending)

This moderate court currently has one Biden nominee confirmed (Arianna Freeman nominated to replace Judge Theodore McKee) but Judges Thomas Ambro and Brooks Smith don’t have replacements yet although nominees are pending on the Senate floor for both seats and should, if prioritized, be confirmed easily.

Two of the three states covered by the Third Circuit have judicial vacancies. The biggest number are in Pennsylvania, which has seven vacancies, four of which have nominees, the aforementioned four nominee deal. With Democrat John Fetterman replacing Toomey, it is likely that new recommendations will be sent out for the remaining vacancies and they will likely not be confirmed in the next few months.

The District of New Jersey, vacancy-ridden when the Biden Administration came to office, is now down to three seats left to fill. However, none of the three vacancies have nominees pending even though the oldest dates back seven months. With control of the Senate solidified, it is likely that New Jersey will see new district court nominees shortly.

Fourth Circuit – 2 vacancies out of 15 judgeships (one nominee pending)

The Fourth Circuit currently has vacancies out of South Carolina and Maryland. Judge DeAndrea Benjamin, nominated to the South Carolina seat, has home state senator support and will likely be confirmed easily in the new Congress. However, the bigger surprise is that a Maryland vacancy announced last December still lacks a nominee. Maryland’s Democratic senators have a mixed record in the speed of recommendations and a district court vacancy in the state announced last year also lacks a nominee.

In other states, Virginia has two nominees pending before the Senate Judiciary Committee for a final vote. Their confirmations would fill all the remaining vacancies on the state’s district courts.

Additional vacancies exist in North Carolina and South Carolina. Both North Carolina and South Carolina have two Republican senators, so any nominee will largely depend on the White House’s negotiations.

Fifth Circuit – 2 vacancies out of 17 judgeships (one nominees pending)

The ultra-conservative Fifth Circuit became even more so when the youngest Democrat on the Fifth Circuit, Judge Gregg Costa, unexpectedly announced his resignation from the bench. Nine months after Costa’s announcement, there is still no nominee pending to replace him, although Judge Dana Douglas, nominated to replace Octogenarian liberal James Dennis, is poised for confirmation after bipartisan support in the Judiciary Committee.

On the district court level, both Louisiana and Texas have multiple district court vacancies and no hint of any nominee. Mississippi, on the other hand, despite having only one vacancy, does have a nominee: Scott Colom. While Mississippi senators have not yet announced support for Colom, they have not expressed opposition either, suggesting that Colom might be, surprisingly, on track for confirmation.

Sixth Circuit – 1 vacancies out of 16 judgeships (one nominee pending)

Of the three vacancies on the Sixth Circuit that opened in the Biden Administration, only the Ohio based seat of Judge R. Guy Cole remains open. Rachel Bloomekatz, nominated to replace Cole, is awaiting a discharge vote in the Judiciary Committee. It remains to be seen if Sen. Sherrod Brown will push for Bloomekatz to receive a final Senate vote by the end of the year.

On the district court level, each of the four states under the Sixth Circuit have vacancies pending. After the White House’s proposal to nominate conservative lawyer Chad Meredith to the Eastern District of Kentucky fell through, there remains no nominee to replace Judge Karen Caldwell, although Caldwell has reaffirmed that she will only leave the bench if a conservative is appointed to replace her.

The Eastern District of Michigan has four pending vacancies and two nominees (one on the Senate floor). Michigan’s Democratic senators have been relatively slow in naming nominees, so it’s unclear when nominees will hit the Senate for the remaining vacancies.

The Southern District of Ohio has a single vacancy, with a nominee, Jeffery Hopkins, pending a Judiciary Committee vote. With Sen. Rob Portman set to be replaced by J.D. Vance, it is possible that Democrats will prioritize Hopkins in an effort to fill the seat before Vance’s input is needed.

Finally, a vacancy is pending on the Western District of Tennessee. The White House and Tennessee Senators battled over the Sixth Circuit nomination of Andre Mathis, and while the White House ultimately won confirmation, other seats could become casualties. Nonetheless, the White House has put forward U.S. Attorney nominees with senatorial support in the state, suggesting that some common ground can be reached to fill the vacancy.

Seventh Circuit – 2 vacancies out of 11 judgeships (one nominee pending)

In addition to naming Judge Candace Jackson-Akiwumi and Judge John Lee to the Seventh Circuit, Biden has the chance to add two more judges to the court. Judge Doris Pryor, currently pending on the senate floor, is likely to be confirmed before the end of the year. However, the second vacancy, opened by Judge Michael Kanne’s death, lacks a nominee. Given the support Indiana’s Republican Senators gave to Pryor, the White House is likely to grant them deference in turn in cchoosing a nominee to replace Kanne.

On the district court level, Illinois nominees Lindsay Jenkins and Colleen Lawless are pending in the Senate Judiciary Committee. The Northern District of Illinois has two more vacancies that are likely to get nominees shortly.

Meanwhile, three vacancies are pending in Indiana without nominees. It is likely that the White House may lump these nominees into a package with the Kanne seat to allow for all the seats to be filled at once.

Wisconsin is likely a sign of frustration for the White House as Senator Ron Johnson has now blocked both a federal judge nominee and a U.S. Attorney nominee that he previously signed off on. With Johnson’s narrow re-election, it is likely that the nomination of Judge William Pocan is dead, and the White House and senators will have to renegotiate a new nominee to replace Judge William Griesbach.

Eighth Circuit – 0 vacancies out of 11 judgeships

While the Eighth Circuit remains the sole court of appeals not to see a vacancy open under Biden, there are a number of vacancies open in the district courts covered under the Circuit, including one each in Arkansas, Minnesota, Nebraska, and South Dakota, and two pending in Missouri. Of these, only the seat in Minnesota has a nominee (Jerry Blackwell, who is awaiting a floor vote). Of the remaining vacancies, the White House has failed to nominate any U.S. Attorneys in those states, boding poorly for the likelihood of any agreement on judicial nominees.

Ninth Circuit – 1 vacancies out of 29 judgeships (one nominee pending)

Compared to other courts of appeals, the White House has had comparative success in confirming judges to the Ninth Circuit, naming six, with a seventh pending a judiciary committee vote. The district courts covered by the Ninth Circuit were equally successful for the White House, which has already confirmed 19 judges to (compared 14 judges that the Trump Administration named over four years).

An additional 13 nominees are currently pending to fill 19 vacancies, eight in California, four in Washington, and one in Oregon. Of the seats needing nominees, four are in California (two on the Central District and two on the Southern District). Another two are in Alaska and Idaho respectively, which have two Republican senators apiece.

Tenth Circuit – 1 vacancy out of 12 judgeships (one nominee pending)

The Kansas seat vacated by Judge Mary Briscoe is the oldest appellate vacancy in the country. Judge Briscoe announced her move to senior status in January 2021, and a nominee, Jabari Wamble, was announced in August 2022. Wamble has yet to have a Committee hearing but could, in theory, be confirmed early next year.

Among the states covered by the Tenth Circuit, there are eight district court vacancies, out of which two have nominees. Five of the six nomineeless vacancies are in states with two Republican senators, with particularly long-pending vacancies in Kansas, Oklahoma, and Utah, in particular. Given the nomination of Wamble in Kansas and the successful confirmation of Trina Higgins to be U.S. Attorney in Utah, it is possible that the White House is able to reach an agreement with senators to fill the vacancies shortly.

Eleventh Circuit – 1 vacancy out of 12 judgeships (one nominee pending)

Judge Beverly Martin announced her retirement from the Eleventh Circuit in July, ultimately leaving the court in late September. The Biden Administration nominated civil rights attorney Nancy Abudu to the court in December, but then unwittingly delayed Abudu’s hearing by quixotically claiming that she was under Supreme Court consideration. While no serious observer believed that Abudu would be nominated to the Supreme Court, her consideration ensured that Abudu’s nomination would not be processed until a nominee was named. Furthermore, Abudu’s nomination proved deeply controversial and deadlocked in Committee, forcing a discharge vote that has yet to occur. Given the risk to Abudu’s nomination if Warnock were to lose, it is likely that Democrats would seek to prioritize her nomination if the runoff went poorly.

On the district court level, Alabama has two pending vacancies, one from the elevation of Judge Andrew Brasher in the Trump Administration, and the second from Judge Abdul Kallon’s untimely resignation. Both lack nominees as outgoing Republican senator Richard Shelby expressed his opposition to any left-of-center nominee. With Shelby’s retirement and the election of Katie Britt to the Senate, it remains to be seen if a package can be reached (it’s possible that Alabama senators may demand the renomination of Trump nominee Edmund LaCour.

Meanwhile, Florida has more nominee-less vacancies than any other state: six. Both Senator Marco Rubio and Florida’s Democratic House delegation recommended attorney Detra Shaw-Wilder (a Democrat) to the Southern District of Florida last year, but no nominee has hit the Senate yet. The recent announcements of U.S. Attorney nominees to two of the three open positions in Florida, however, could presage a thaw in negotiations over the state’s appointments.

Conclusion

On one side, one could argue that the Senate has plenty of time to fill these vacancies, as well as more that will inevitably open over the next two years. After all, despite a packed legislative calendar, the Senate has already confirmed eighty-five nominees (and will likely confirm more before the end of the Congress). However, it’s also important to recognize the fragility of the Democrat’s narrow majority. Just because 50 members held together over the last two years is no guarantee that it will last another two. In a sense, winning the Georgia runoff and securing a 51st seat will be all the more important for Democrats if they seek to rival Trump’s judicial legacy.

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Scott Colom – Nominee to the U.S. District Court for the Northern District of Mississippi

Mississippi District Attorney Scott Colom has built a name for himself as a “progressive” prosecutor, frequently writing and advocating for changes in the justice system. Colom has now been tapped for a vacancy on the federal bench in Mississippi.

Background

A native of Columbus, Mississippi, Colom was born on December 25, 1983. He graduated from Millsaps College in 2005 and from the University of Wisconsin Law School in 2009. He subsequently spent two years as a staff lawyer for the Mississippi Center for Justice before joining Colom & Colom in private practice.

While maintaining his private practice, Colom also served as a city and municipal court judge as well as a part-time prosecutor in Columbus.

In 2015, Colom defeated 30-year-incumbent Forrest Allgood in a contentious race for district attorney for the 16th Judicial District of Mississippi, where Colom currently serves.

History of the Seat

Colom has been nominated for a vacancy on the U.S. District Court for the Northern District of Mississippi. This seat opened on November 1, 2021, when Judge Michael Mills took senior status. Colom was recommended to the White House in November 2021 by U.S. Rep. Bennie Thompson, the sole Democrat in Mississippi’s Congressional delegation.

Legal Experience

Colom started his legal career at the Mississippi Center for Justice, a nonprofit law firm focused on racial justice issues and then spent five years in private practice. Among the most notable cases he handled with the firm, Colom represented Taylor Bell, an Itawamba Agricultural School student who was disciplined by the school for publishing a rap song on Facebook that contained vulgar lyrics and criticized two coaches at the school. See Miss. Student Challenges Suspension Over Rap Song, A.P. State & Local Wire, Dec. 4, 2012. The district court dismissed Bell’s challenge, finding that the song was not protected under the First Amendment. See Bell v. Itawamba Cnty. Sch. Bd., 859 F. Supp. 2d 834 (N.D. Miss. 2012). However, a divided panel of the Fifth Circuit reversed the dismissal, finding that the disciplining of a student for purely off-campus activities violates the First Amendment. See Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280 (5th Cir. 2014). The full Fifth Circuit took the matter en banc and affirmed the district court’s decision. See Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379 (5th Cir. 2015) (en banc).

Since 2016, Colom has served as district attorney for the 16th Judicial District in Mississippi, which covers four counties in Northeastern Mississippi. His campaign against longtime incumbent Forrest Allgood involved criticism of the incumbent’s “tough on crime” record and the number of overturned convictions under his watch. See Leon Neyfakh, How to Run Against a Tough-on-Crime DA – And Win, Slate, Nov. 12, 2015.

Notably, as D.A., Colom was asked to review criminal charges related to the shooting death of Ricky Ball from police officer Canyon Boykin. Colom controversially decided to hand the case to the Attorney General’s office for prosecution, stating that his office handling the case would have an appearance of bias given their close relationship with the police department. See Jeff Amy, District Attorney Hands Police Shooting Prosecution to State, A.P. State & Local, July 6, 2016. However, after Democratic Attorney General Jim Hood was replaced by Republican Lynn Fitch in the 2019 elections, Fitch dropped the charges against Boykin, prompting criticism by Colom, who claimed that he was not consulted in the decision. See DA: Bad Time to Drop Charge of Ex-Cop in Black Man’s Death, A.P. Int’l, May 29, 2020.

In other matters, Colom supported the release of Steven Jessie Harris, who had been held for 11 years without trial, to a state mental health facility. Emily Wagster Pettus, Man Held 11 Years Without Trial Will Go to Mental Facility, A.P. State & Local, June 14, 2016. He also dropped murder charges against Brittania Smith, noting that toxicology reports did not support that she had fatally poisoned her child. See Murder Charge Dropped Against West Point Woman, A.P. State & Local, July 11, 2016. Colom also dropped murder charges against Eddie Lee Howard, who spent 23 years on death row, after his conviction was based on debunked bite mark evidence. See Leah Willingham, Murder Charge Dismissed After Debunked Bite-Mark Testimony, A.P. Int’l, Jan. 11, 2021.

Statements and Writings

As a district attorney, Colom has frequently issued statements regarding prosecutions of his office. He has also issued statements on other issues as well. For example, in 2021, Colom was one of the politicians who was discovered to have unpaid campaign finance fines (in his case $50). See Taylor Vance, Mississippi Elected Officials, Candidates Owe Thousands in Unpaid Campaign Finance Fines, Northeast Mississippi Daily Journal, July 1, 2021. In the article, Colom blamed the failure to pay on a lack of notice from the Secretary of State’s office, noting that a predecessor had sent out email notifications. See id. (quoting Scott Colom).

Specifically, Colom has been vocal about the use of special prosecutors to prosecute cases of police misconduct, arguing that keeping the cases with the elected prosecutors’ offices creates an appearance of bias. See Why one North Mississippi D.A. Thinks Special Prosecutors Hold the Key in Police Shootings, Mississippi Today, Aug. 20, 2018.

In addition, Colom has frequently joined amicus briefs and letters with other prosecutors. For example, Colom signed onto an amicus brief with the Fifth Circuit opposing cash bail for misdemeanor defendants. See Attorney General Racine, Other Prosecutors and Law Enforcement Leaders Call for End to Cash Bail for Misdemeanor Defendants, States News Service, Aug. 10, 2017. Colom also signed onto a Supreme Court brief seeking to overturn a 241 year sentence imposed by Missouri on a juvenile. See 75 Judges, Prosecutors, Probation, Corrections, Law Enforcement Leaders Call on Supreme Court to Reject 241-Year Sentence for Juvenile, Targeted News Service, Mar. 15, 2018. Colom also joined an amicus brief seeking the overturning of a Missouri conviction after new evidence was unearthed. See Elected Prosecutors File State Supreme Court Brief in Support of New Trial for Innocent Man Behind Bars, States News Service, Feb. 11, 2020. He also wrote in support of reducing prison populations in response to the Covid-19 pandemic. See Scott Colom and Miriam Aroni Krinsky, Tragedy of COVID-19 in Prison Shows Need for Decarceration, The People’s Vanguard of Davis, July 3, 2020. See also Elected Prosecutors Call for Dramatic Reduction in Incarcerated and Detained Populations in Response to Coronavirus, The People’s Vanguard of Davis, Mar. 18, 2020.

Overall Assessment

Given Senate Judiciary Committee Chairman Durbin’s commitment to preserve home-state veto power over district court nominees, Colom makes for a curious choice from the Biden Administration for Mississippi. His record overall is strongly liberal and willing to court controversy. Additionally, at only 38, Colom is young enough to have a lengthy tenure on the court. One would think that these would be reasons for Mississippi’s home state senators to block his nomination.

However, the fact that Colom’s nomination has become public suggests that the senators have, at least tentatively, signed off on him. For all of the Administration’s judicial assertiveness, they have largely resisted the urge to override home-state senators on nominations, even in states where they could have arguably done so. As such, it will be interesting to see if Colom’s nomination represents part of a deal with Mississippi senators (perhaps as part of the state’s U.S. Attorney picks), or if Colom was able to strongly impress the senators in meeting with them. As Colom is also a good friend of Mississippi Republican Representative Trent Kelly, it is possible that Colom has fans on the other side of the aisle.

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Judge Jonathan Grey – Nominee to the U.S. District Court for the Eastern District of Michigan

Just last year, federal prosecutor Jonathan Grey was tapped to be a U.S. Magistrate Judge on the Eastern District of Michigan. Grey has now been nominated for a lifetime appointment on the court.

Background

Jonathan James Canada Grey received a B.Sc. from Morehouse College in 2004 and a J.D. from the Georgetown University Law Center in 2007. He then clerked for Judge Willie Sands on the U.S. District Court for the Middle District of Georgia and for Judge Damon Keith on the U.S. Court of Appeals for the Sixth Circuit.

After his clerkships, Grey returned to the firm of Seyfarth Shaw, where he had briefly worked before clerking, but left after just a year to become a federal prosecutor in the U.S. Attorney’s Office for the Eastern District of Michigan. In 2016, he shifted to the U.S. Attorney’s Office for the Southern District of Ohio.

In 2021, Grey became a U.S. Magistrate Judge on the Eastern District of Michigan, where he currently serves.

History of the Seat

Grey has been nominated for a seat on the U.S. District Court for the Eastern District of Michigan. This seat opened on May 1, 2022, when Judge Denise Hood moved to senior status.

Legal Career

Grey started his legal career at the firm of Seyfarth Shaw but then spent approximately a decade as a federal prosecutor in Michigan and Ohio. Among the matters he handled as a federal prosecutor, Grey defended the Internal Revenue Service’s failure to file complaints alleged tax evasion against businesses within 90 days of seizure of assets. See Ed White, Feds Returning $205K to Businesses Targeted by IRS, A.P. State & Local Wire, Nov, 20, 2013. Judge Sean Cox ordered the return of the seized funds. See id. While in Ohio, Grey tried the case against Richard Jerel Doyle for illegally possessing a firearm. Northern Ohio Felon Sentenced to 100 Months for Illegally Possessing a Firearm, States News Service, Apr. 7, 2017. Doyle was convicted after a two day jury trial and was sentenced to a prison term of 100 months by Judge Edmund Sargus. See id.

While Grey was with the U.S. Attorney’s Office for the Eastern District of Michigan, Judge David Lawson threw out a conviction in a case he was handling (it is unclear if Grey was trial counsel or joined the case post-trial) for a violation of Brady (the Brady rule requires prosecutors to turn over all exculpatory or mitigating evidence). See United States v. McClellon, 260 F. Supp. 3d 880 (E.D. Mich. 2017). Specifically, Judge Lawson ruled that the government should have turned over information that a key police witness had been suspended for false statements but also noted: “The Assistant United States Attorney cannot be faulted here for the nondisclosure.” Id. at 884.

Political Activity

Grey’s only donation of record that could be found was a $50 donation in 2016 to Charles Hill, a Democrat running for mayor of Stonecrest, Georgia.

Jurisprudence

Grey has served as a federal magistrate judge since his appointment in 2021. One of Grey’s duties as magistrate judge is to issue Reports and Recommendations on substantive motions for the district judge. See, e.g., Huizar v. Comm’r of Soc. Sec., 2022 U.S. Dist. LEXIS 119873 (E.D. Mich. Mar. 4, 2022). During his short tenure, Grey has had a handful of his recommendations rejected in part. For example, Judge Terrence Berg rejected in part Grey’s report recommending the granting in part of motions for summary judgment in an ERISA suit. See Washington v. AT&T Umbrella Ben. Plan No. 3, 2022 U.S. Dist. LEXIS 177510 (E.D. Mich. Sept. 29, 2022). Similarly, Judge Shalina Kumar rejected Grey’s recommendation that a plaintiff’s First Amendment retaliation claim be dismissed. See Seymoure v. Ferguson, 2022 U.S. Dist. LEXIS 179603 (E.D. Mich. Sept. 30, 2022).

Overall Assessment

Given the compressed timeline this year for judicial nominations, it is looking less likely that Grey will be confirmed to the Eastern District before the end of the Congress. However, his nomination should be relatively uncontroversial before the next Congress.

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Judge Colleen Lawless – Nominee to the U.S. District Court for the Central District of Illinois

Three years onto the state court bench, Judge Colleen Lawless has been nominated for a seat for the U.S. District Court for the Central District of Illinois.

Background

Born Colleen Rae Schuster, Lawless received a B.A. from Illinois Wesleyan University in 2005 and a J.D. from Northern Illinois University School of Law in 2009.

After graduation, Lawless joined Londrigan, Potter & Randle P.C., becoming a shareholder with the firm.

In 2019, Lawless became an associate judge on the Illinois 7th district Circuit Court. She currently serves on the court.

History of the Seat

Lawless has been nominated for a future vacancy on the U.S. District Court for the Central District of Illinois, which Judge Sue Myerscough has indicated will open upon the confirmation of a successor. In June 2022, Lawless was recommended by Illinois’ Democratic Senators Richard Durbin and Tammy Duckworth for the seat alongside Chicago attorney Johanes Maliza and University of Illinois attorney Rhonda Perry.

Legal Career

Before she became a judge, Lawless spent her entire legal career at Londrigan, Potter & Randle P.C. in Springfield.

At the firm, Lawless handled civil litigation, including representing a plaintiff suing her insurance company in seeking coverage regarding her stay in a facility (the company disputed whether the facility qualifies as a nursing home for benefit purposes). See Perry v. Transamerica Life Ins. Co., 2010 U.S. Dist. LEXIS 67973 (C.D. Ill. July 8, 2010). She also represented Marvin Manns, an African American water maintenance worker who sued the City of Decatur for discrimination after he was terminated after refusing to sign an agreement that gave him a lower pay but allowed him to bypass civil service selection rules. See Manns v. City of Decatur, 2011 U.S. Dist. LEXIS 82780 (C.D. Ill. July 28, 2011) (granting summary judgment to defendants).

Lawless has also handled class action suits, including a Fair Labor Standards Act suit against Treasure Hunters Roadshow. See Lee v. THR & Associates, 2013 U.S. Dist. LEXIS 208963 (C.D. Ill. Apr. 5, 2013).

Jurisprudence

Since 2019, Lawless has served as a judge on the Illinois 7th Judicial Circuit Court, which covers the Springfield area. As a Circuit Court judge, Lawless handles civil and criminal trial-level cases, as well as administrative appeals.

Among the cases that Lawless handled on the bench, she denied an emergency motion from Sean Shea seeking the return of his minor child, who had left the state with the mother. See Cagwin v. Shea, 2022 IL App (4th) 210619-U (Ill. App. Mar. 11, 2022). An appellate court affirmed Lawless’ decision, finding that she appropriately found that injunctive relief was inappropriate.

Overall Assessment

With a career focused on civil cases (which usually draw less controversy), and an uneventful tenure on the state bench, Lawless should be unlikely to draw much ire through the confirmation process. Nonetheless, this may also be why Democrats choose to deprioritize her nomination, pushing more controversial names through while they retain their majority.

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Orelia Merchant – Nominee to the U.S. District Court for the Eastern District of New York

Orelia Merchant currently serves as the Chief Deputy to New York Attorney General Letitia James, a role which has given her scope to participate in much of the office’s key litigation. Merchant has now been nominated for a federal judgeship.

Background

Merchant attended Dillard University, an HBCU in New Orleans, getting a B.Sc. in 1992. She then got a Master of Arts in marine science from the College of William & Mary in 1995 and then a J.D. from Tulane University Law School in 1998.

Merchant subsequently worked for four years as regional counsel to the U.S. Environmental Protection Agency and then spent two years as a Special Assistant U.S. Attorney for the Eastern District of Louisiana.

In 2002, Merchant became a federal prosecutor at the U.S. Attorney’s Office for the Eastern District of New York. She held this role until she joined the New York Attorney General’s Office in 2019, where she currently serves.

History of the Seat

Merchant has been nominated for a seat on the U.S. District Court for the Eastern District of New York. This seat opened on January 1, 2022 when Judge William Kuntz took senior status.

Legal Experience

Merchant started her legal advocacy career early, working as a law student to fight plans by a Japanese chemical company to build a plant in Convent, Louisiana, earning the ire of Gov. Mike Foster, who called her and her fellow students “vigilantes” and “outlaws.” See Tulane University Law Students Help Poor People of Convent, Louisiana, Keep Out Another Chemical Plant, CBS News Transcripts, Oct. 19, 1998. After law school, Merchant continued her environmental advocacy, working with the EPA on complaints against Pole Air Corp. for alleged violations of clean air laws from the company’s radio tower. See Epa Cites Pole Zero for Air Pollution, PR Newswire, July 27, 2001.

Merchant subsequently worked as a special assistant U.S. Attorney (SAUSA) with the U.S. Attorney’s Office for the Eastern District of Louisiana, where she handled civil cases, including employment discrimination. See, e.g., Capers v. Henderson, 153 F. Supp. 2d 846 (E.D. La. 2001).

From 2002 to 2019, Merchant worked as a federal prosecutor with the U.S. Attorney’s Office for the Eastern District of New York, working in the Civil Division. Among her time with the office, Merchant was awarded for her work on litigation post-Hurricane Sandy involving FEMA. Other matters she handled for the office included defending civil asset forfeitures in criminal cases. See, e.g., Buculei v. United States, 440 F. Supp. 2d 225 (E.D.N.Y. 2006). Merchant also handled government defense against employment discrimination cases and tort claims. Compare Andretta v. Napolitano, 922 F. Supp. 2d 411 (E.D.N.Y. 2013) to Korotkova v. United States, 990 F. Supp. 2d 324 (E.D.N.Y. 2014).

Since 2019, Merchant has served as Chief Deputy Attorney General for the State of New York. In this position, Merchant heads the Division of State Counsel, which includes the Litigation Bureau and the Civil Recoveries Bureau.

Political Activity

Merchant has a handful of political donations to her name, all to Democrats.

Overall Assessment

Having spent the past two and a half decades in litigation, Merchant comes to the federal bench well prepared for its challenges. However, given the limited Senate calendar, Merchant is unlikely to be confirmed before the end of the Congress.

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Judge Ramon Reyes – Nominee to the U.S. District Court for the Eastern District of New York

A federal magistrate judge with sixteen years on the bench, Judge Ramon Reyes is a relatively conventional nominee from the Biden Administration for the Eastern District bench.

Background

Reyes received a B.Sc. from Cornell University in 1988, a J.D. from Brooklyn Law School in 1992 and an LLM. from the New York University School of Law in 1992. Reyes then clerked for Judge David Trager on the U.S. District Court for the Eastern District of New York before joining O’Melveny & Myers in New York City.

In 1998, Reyes joined the U.S. Attorney’s Office for the Southern District of New York as an AUSA.

In 2006, Reyes became a federal magistrate judge on the U.S. District Court for the Eastern District of New York. He serves on that court today.

History of the Seat

Reyes has been nominated to fill a seat on the U.S. District Court for the Eastern District of New York. This seat opened on July 23, 2022 when Judge Kiyo Matsumoto moved to senior status.

Legal Career

Reyes started his legal career by clerking on the U.S. District Court for the Eastern District of New York. He then worked as an associate at O’Melveny & Myers in New York City. While at the firm, Reyes represented the Insurance Company of North America in a liability suit regarding damages from the cleanup of environmental damage caused at natural gas lines. See Interstate Power Co. v. Insurance Co. of N. Am., 603 N.W.2d 751 (Iowa 1999).

From 1998 to 2006, Reyes worked for the U.S. Attorney’s Office for the Southern District of New York as a federal prosecutor. At the office, Reyes handled civil charges, including defending against a Title VII lawsuit alleging employment discrimination brought by a postal worker. See Brown v. Henderson, 115 F. Supp. 2d 445 (S.D.N.Y. 2000). The district court granted summary judgment in favor of the Postal Service and Reyes argued the case on appeal before the Second Circuit, which affirmed. See Brown v. Henderson, 257 F.3d 246 (2d Cir. 2001). He also defended the constitutionality of the National Voter Registration Act of 1993. See Kalsson v. United States FEC, 356 F. Supp. 2d 371 (S.D.N.Y. 2005).

Jurisprudence

Reyes has served as a U.S. Magistrate Judge since his appointment in 2006. In this role, Reyes handles arraignments, bail hearings, and discovery disputes. Additionally, Reyes also presides over cases by the consent of the parties. One of the trials he presided over involved a naming dispute between Patsy’s Italian Restaurant and Patsy’s Pizzeria. See John Marzulli, Jury Mulls Name Fight of 2 Patsy’s. W. Side Spot, Harlem Pizzeria Battle, New York Daily News, Apr. 9, 2008. Reyes ruled that both eateries were barred from using only the name “Patsy’s.” See Simone Weichselbaum, Eateries Can’t Stand Pat(sy), Judge Insists, New York Daily News, Sept. 10, 2008.

Reyes also handled a sexual contact charge against an Orthodox rabbi involving allegations that he touched the groin and breast of an Israeli army officer sitting next to him. See John Marzulli, Rabbi Groped Me on Flight, Faking Sleep. Israeli Dad of 11 Denies All, New York Daily News, May 5, 2011. Reyes found the defendant guilty, finding the victim’s testimony “compelling and wholly believable.” See John Marzulli, Rabbi Guilty in Grope of Female Soldier, New York Daily News, May 6, 2011. Reyes sentenced the defendant to 60 days in jail. See John Marzulli, Perv Rabbi Gets 60 Days in Jail, New York Daily News, May 5, 2011.

Writings

Over the course of his legal career, Reyes has occasionally commented on the law. For example, as a magistrate, Reyes coauthored a paper discussing the Eastern District’s efforts to manage a flood of lawsuits brought about as a result of Hurricane Sandy. See Cheryl L. Pollak, Ramon E. Reyes, & Robyn Weinstein, Esq., “Hurricane” Sandy: A Case Study of the Eastern District of New York’s Effort to Address Mass Litigation Resulting From the Effects of Climate Change, 5 Tex. A&M J. Prop. L. 158 (2019).

As an associate at O’Melveny, Reyes authored an article discussing the home taping of copyrighted audio soundtracks. See Ramon E. Reyes, Jr., Can the Common Law Adequately Justify a Home Taping Royalty Using Economic Efficiency Alone?, 16 N.Y.L. Sch. J. Int’l & Comp. L. 235 (1996). The article details the various regimes different countries have employed to account for losses from the home copying of copyrighted materials, criticizing the use of a “home taping royalty” or a surcharge on the purchase of recording devices and blank tapes as a method of addressing this issue. See id. at 263-64. In another article, Reyes extrapolates from a settlement between Australia and Nauru to cover damages caused by phosphate mining at Nauru that international law establishes a fiduciary duty for administering bodies to properly manage colonies and territories. See Ramon E. Reyes, Jr., Nauru v. Australia: The International Fiduciary Duty and the Settlement of Nauru’s Claims for Rehabilitation of its Phosphate Lands, 16 N.Y.L. Sch. J. Int’l & Comp. L. 1 (1996).

Overall Assessment

It is unlikely that Reyes will face much opposition in the confirmation process. His tenure as a magistrate judge and an AUSA has been relatively uneventful and his experience would allow him to hit the ground running as a district court judge.

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