Port Authority General Counsel Michael Farbiarz has spent virtually his entire legal career in New York City, but has now been nominated to a seat on the federal bench in New Jersey.
The 48-year-old Farbiarz received a Bachelor of Arts from Harvard University in 1995 and a J.D. from Yale Law School in 1999. He then clerked for Judge Michael Mukasey on the U.S. District Court for the Southern District of New York and for Judge Jose Cabranes on the U.S. Court of Appeals for the Second Circuit.
After his clerkships, Farbiarz spent three years with the New York office of Davis Polk & Hardwell before becoming a federal prosecutor for the U.S. Attorney’s Office for the Southern District of New York. In 2014, Farbiarz became a Senior Fellow with the New York University School of Law.
Since 2016, Farbiarz has served as general counsel for the Port Authority of New York and New Jersey.
History of the Seat
At the recommendation of Senator Cory Booker, Farbiarz has been nominated to replace Judge Noel Hillman, who took senior status on April 4, 2022.
Farbiarz started his career as an associate at Davis Polk & Hardwell in New York City. While at the firm, Farbiarz was part of the legal team for Duane Reade, who was suing to recover damages from an insurer after the September 11 attacks. See Duane Reade Inc. v. St. Paul Fire & Marine Ins. Co., 279 F. Supp. 2d 235 (S.D.N.Y. 2003).
From 2004 to 2014, Farbiarz worked at the U.S. Attorney’s Office for the Southern District of New York. At the office, Farbiarz notably handled terrorism prosecutions. See, e.g., Haouari v. United States, 429 F. Supp. 2d 671 (S.D.N.Y. 2006) (concerning prosecution of participant in LAX millennium bombing plot). Farbiarz notably prosecuted Al Qaeda member Ahmed Ghailani. See, e.g., United States v. Ghailani, 751 F. Supp. 2d 508 (S.D.N.Y. 2010). Ghailani was ultimately convicted of one count of conspiracy to destroy government property but acquitted of 279 other counts. See Benjamin Weiser, U.S. Jury Acquits Former Detainee of Most Charges, N.Y. Times, Nov. 18, 2010. Farbiarz also prosecuted Tongsun Park, who was alleged to siphon money from the United Nations Oil for Food program. See Paul H.B. Shin, Saddam Gave Bizman 2.5M: Feds, New York Daily News, June 28, 2006.
Notably, Farbiarz prosecuted Somali nationals charged with piracy for their attack on the Marsk Alabama, an American vessel. See Benjamin Weiser, A Suspect in Somali Piracy Denies United States Charges, N.Y. Times, May 22, 2009. He also led the prosecutions related to a “nest” of 11 Russian spies who allegedly lived in Manhattan. See Scott Shifrel and Helen Kennedy, Russian Spy Ring Lived Among Us! Shocker Reminiscent of the Cold War as FBI Takes Down Nest of ‘Deep Cover’ Agents,New York Daily News, June 29, 2010.
Since 2016, Farbiarz has served as general counsel for the Port Authority of New York and New Jersey, which oversees the regional transportation instructure for the tristate area. In this role, Farbiarz’s name appeared in briefs in litigation involving the Port Authority, including in suits over arbitration awards involving the Port Authority Police. See Port Authority of New York and New Jersey v. Port Authority of New York and New Jersey Police Benev. Association, Inc., 209 A.3d 897 (N.J. Super. 2019).
In his time as a Fellow at NYU Law School, Farbiarz has written on terrorism and extraterritorial prosecutions. In one paper, Farbiarz advocates for more robust due process protections to apply in extraterritorial and international prosecutions. See Michael Farbiarz, Accuracy and Adjudication: The Promise of Extraterritorial Due Process, 116 Colum. L. Rev. 625 (April 2016). In another paper, Farbiarz criticizes the tendency of federal courts to apply Constitutional due process protections in international prosecutions, arguing that a better due process scheme would be to focus on “conflicts” between American legal standards and local law and to shore up those gaps. See Michael Farbiarz, Extraterritorial Criminal Jurisdiction, 114 Mich. L. Rev. 507 (Feb. 2016).
With impeccable academic credentials and a relatively uncontroversial background, Farbiarz looks likely to have a relatively comfortable confirmation. On the bench, he’s likely to be a relatively mainstream judge.
I just don’t understand how a deep blue state like New Jersey can’t seem to put young progressives on the bench. And this nominee isn’t nearly as bad as many of the others from the state during Biden’s term.
It’s all about who the senators are as for how progressive the nominees will be. While Georgia is much more purple than New Jersey, their judicial nominees have been much younger and progressive because of how progressive their senators are.
I agree with you, what I’m saying is that isn’t the way it should be. Biden or at least The White House Counsel’s Office should be pushing back more. Now reports show they are finally doing that with the 4th circuit vacancy in Maryland & I hope that is the beginning of more over the next two years. But they also need to do so for district court vacancies as well.
Farbairz seems to be a nominee who could get bipartisan praise. He could be questioned about his views on international and local laws and how they apply in Federal cases. He seems to be a strong nominee though not an ideological one.
In an unrelated matter, one member of the Michigan Supreme Court apologized to another over her hiring of a clerk who was convicted of shooting at some policemen. This was talked about on a previous thread.
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Very good to see Justice Bernstein apologize as I believe he completely overreacted. Honestly had he done everything privately it wouldn’t have been an issue but him saying he wasn’t going to talk to a fellow justice any longer was what really threw me for a loop. As I wrote last week I not only don’t think this will hurt Justice Bolden but I actually think it will help her chances at elevation & that was before the apology. This only cements my belief in that now.
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Bernstein may have apologized, but he only did so after getting the result he wanted (the clerk resigning/being fired). Since Bernstein loves holding other people’s past against them so much, anyone considering him for elevation should definitely hold his little tantrum against him and disqualify him from consideration for any federal post. The damage is done to Bolden and her clerk, so Bernstein shouldn’t be getting off without any consequences.
I disagree with Dequan and very much think this will be an issue for Bolden going forward – not least because she has to run for re-election in a closely divided state and the “Judge hires Cop Killer” ads will write themselves. She’s unlikely to be elevated to a federal court if she loses, and even if she wins, the decision certainly makes her a much more controversial nominee than she was before.
Michigan has not had a history of progressive picks even under Biden (other than Tlaib, who doesn’t seem to have much way with the administration or other Democrats generally). None of their elected Democrats are particularly progressive – the early field to replace Stabbenow is also all moderate white women, which is telling about Michigan Democrats more broadly. I think Bolden was right to hire the guy and give him a chance, but no question that she’ll be unfairly penalized for it. Her best hope is to be on the MI Supreme Court long enough that this blows over by the time there’s another Democratic president/Senate – but who knows how long this will take. Then again, all of this is contingent on Clay going senior, and who knows if/when that will happen.
I agree with most of what @Hank said, I just think that’s more of a reason why Bolden would be elevated. Michigan is a purple state & Bolden will have a tough reelection to the Michigan SCOTUS. So if Eric Clay were to retire this year or early next year, I think the chances of her belong elevated are increased for the following reasons;
1. Biden has shown he wants to elevate Black woman to the circuit courts. Bolden would be the youngest out of all his circuit court nominees.
2. Out of the two Michigan senators, one is retiring & the other isn’t up for reelection for another 5 years. So they can both take risky votes.
3. In 2016, Hillary lost Michigan with lower turnout in the Detroit metro area than both Obama & Biden’s wins. They would strengthen the chances of increasing voter turnout there by showing they are fighting to confirm a young Black woman.
4. Justice Bernstein apologizing further shows Holden grace & professionalism even in the face of friendly fire.
Now I am in no way saying Bolden will be elevated. First off, I don’t know if Clay will retire in the next two years since he didn’t prior to the midterms when it looked like the Dems may lose. Second, I think the senators would probably recommend another state court judge with more experience. I’m just saying I don’t think she has any worse chance today then she did before this story exploded.
Didn’t realize Farbiarz prosecuted the Somali pirates. This background was a little more impressive than I thought.
I am fine with this one but I agree with others that the choices of the NJ senators have largely been disappointed. That’s especially odd considering that I’ve always considered Booker one of the more progressive senators.
I agree with your second sentence. I thought he was a bit more traditional when he was nominated than he appears to be. A decent addition to this court.
Yup, the whole Michigan Supreme Court thing is a mess and I honestly see it hurting both Bernstein and Bolden going forward.
Bernstein has burned bridges with many in the Black community that he’s never going to be able to fix and his comments about police and offenders has shown he won’t be an impartial jurist you can trust.
As for Bolden, her intentions were good but sad to say, Hank is right in that the attack ads will write themselves in a couple of years on how she is anti-police etc.
I also think even with Democrats fully controlling the Senate that they might be leery of nominating her after this.
It’s one thing to defend people as part of your job but she will be attacked over hiring someone on her own that some folks won’t like.
Not fair but the tough on crime mentality is coming back and those who are viewed as weak are going to get punished for it.
As for Michigan Democrats overall, I think folks have to come to terms with the fact that a state being blue for state and federal elections doesn’t mean they are going to be in the progressive mold.
Like it or not, most places are in the Joe Biden centrist wing then not.
One of the less bad New Jersey picks but there were still much better options. Will save my more critical comments for when Harsh posts about Robert Kirsch.
I think the Harsh post for Robert Kirsch is the second most anticipated behind J Childs. I still go back & look at that post for a good laugh sometimes… Lol
I can think of 3 New Jersey nominees under Bien that I would rather have the district court judges from Iowa & Ohio over them instead. Hell even the recent Indiana nominee would be better than 2 of them a least. The slate of nominees out of the state have been underwhelming at best & pathetic at worst. Out of 8 nominees, only Georgette Castner should even be given the slightest look at if a 2nd circuit court seat opened up tomorrow.
On a more positive note, I’m happy to see Harsh back to making more post. Hopefully tomorrow the SJC post a hearing for next week (Or at least on Thursday post a SJC executive meeting for next week Thursday), the senate will be back in session Monday, Biden can send the rest of the nominees from last year to the senate next week & then a 29th batch sometime by early to mid-February. The senate should be well rested & ready to get back to work.
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When will we get the next batch of nominees? I thought last week but I’m unclear on when the schedule for SJC meetings is – would like to see some appellate nominees and better district court nominees soon.
Somebody was asking about Booker, and I’ve always felt that he was more talk than action – gives very nice speeches and all (his remarks during the KBJ hearings were touching), but I’m not too clear on what his signature issue or main priorities in the Senate are. I’m sure Menendez is a pain to work with, but especially since Booker is a Yale-educated lawyer himself, his lack of attention to judges has certainly been disappointing.
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Here’s one for the group–@ChrisBragg1 is reporting that Hochul has hired a lawyer to try to advise on the LaSalle nomination fight.
The lawyer? Caitlin Halligan, she of the 5x nominated to the D.C. Circuit Halligans. Make of it what you will.
I was just gettng my feet wet on judicial nominations when Halligan was being continuously renominated. I remember being incredibly frustrated with the Senate. Some things never change.
Caitlin Halligan is definitely an interesting choice. Not only because of her history of having her nomination to the DC circuit held up by Republicans, but also because she was subsequently recommended to Cuomo for one of the previous NY court of appeals vacancies.
I wonder if she ever regrets withdrawing. Harry Reid ended the filibuster less then 15 months after she withdrew. Also I wonder which one of Obama’s DC circuit court judges wouldn’t have been nominated had she hung in there & been confirmed.
Just an amazing unforced error by Hochul and her allies. NY Dems are a complete mess.
This wasn’t exactly what I had in mind when I said I was looking forward to the SJC getting back to work next week. Let’s hope for more important work next week Wednesday and/or Thursday.
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Hopefully a nomination hearing Wed though. Fingers crossed. I was actually a bit worried all they’d do next week is hold organizational meetings to add whatever new members to subcommittees etc. At least they’re moving again.
A new future vacancy announced today, Karen Schreier, Clinton appointee on the district of South Dakota. Another red state seat that will probably stay vacant if they remain too timid about blue slips. It’s a TBD senior status upon confirmation of successor, so maybe she’ll stick around but probably not after a year plus of waiting.
Something tells me Karen Schreier will be an active judge for a long time if she made her senior status contingent on confirmation of her successor.
Rounds and Thune are usually fairly reasonable with other things, so compromise picks could be a possibility. Particularly with two vacancies now.
There is still a pending vacancy in South Dakota from when fellow Clinton appointee Jeffrey Viken went senior on October 1, 2021.
This recent article from November 2022 states that the South Dakota Democratic Party recommended 58 year-old Magistrate Judge Veronica Duffy for Viken’s seat. https://southdakotasearchlight.com/2022/11/28/democrats-recommend-duffy-as-federal-judge/
This was after two Native American women (47 year-old Assistant US Attorney Sarah Collins and 53 year-old former Attorney General of the Cheyenne River Sioux Nation Tracey Zephier) were previously mentioned as the most likely candidates for the seat.
I wonder if either one of them could get Schreier’s seat. Viken’s duty station is Rapid City while Schreier’s duty is Sioux Falls.
Duffy’s duty station is Sioux Falls as well, so if she’s replacing Viken, I wonder if Schreier’s replacement will come from Rapid City.
For context, Sioux Falls and Rapid City are 5 hours/ 347 miles apart.
Public records show that Zephier lives in Sturgis, SD (of motorcycle rally fame), which is not far from Rapid City while Collins lives in Box Elder, SD (also outside of Rapid City).
There is also a Magistrate Judge based out of Rapid City named Daneta Wollmann and public records show that she was born around 1978. She is also a former Assistant US Attorney.
One final name I’ll throw out is US Attorney Alison Ramsdell. She is young (born around 1985), so it’s unlikely South Dakota’s Senators would approve of her. Also unlikely since it appears she also lives around Sioux Falls. However, I still mention her since she is a former clerk to Schreier and would be following Schreier’s footsteps going from US Attorney to judge.
Arinna Freeman hears her first case today:
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I know I’m largely in a minority here, but I honestly think that Farbiarz is a perfectly decent nominee. His academic record suggests he’s not a law-and-order head-banger, and he has a fairly distinguished record in public service. I understand the views of others that they’d prefer a more obviously progressive nominee and don’t fancy another former prosecutor joining the bench, but by the standards of the NJ nominations he’s more Julien Neals than Christine O’Hearn in terms of objectionableness.
Kirsch, on the other hand, is inexplicable.
Reading the thread, I see I was a bit premature in my judgement of how negatively Farbiarz’s nomination would be received.
On a completely different note, has Amy Berman Jackson only just announced her planned retirement from the D.C. District Court, or has that just flown under my radar?
Amy Berman Jackson announced she was taking senior status back in December 12th. Perhaps you missed it with everything going on in the senate at the time.
As for Michael Farbiarz, I think everyone agrees he is well qualified for the position. Honestly he’s not a bad nominee. It’s just that New Jersey as a whole has been bad on judges & we were hoping for so much better with the three remaining vacancies. But Farbiarz isn’t even in the bottom three of the Biden New Jersey judges so I wish him well.
We will have a nominations hearing next Wed…Let’s hope is judges and not executive nominees
Great news. Unfortunately with Biden still not resending Wamble’s name to the senate, it’s likely to only be district court nominees. A complete disservice but thankfully we have two more years in the majority to get it done.
Looks like they are seriously considering not sending his nomination to the floor. Let’s hope they can stick together like McConnell & Republicans did.
His hearing is currently going on and it looks like it’ll be close since the Republicans are backing him. It also came out that LaSalle ran on the Conservative Party line in 2008 and 2022 so that cow Hochul has literally nominated a conservative judge. Seems like it will be tougher to vote him down if he actually gets to the floor, so we’ll have to see. As for Hochul, She’s an insult to Democrats everywhere (especially in NY) and the left should be ashamed of itself if it doesn’t run a strong primary challenge to her in 2026.
WOW… I didn’t know he literally ran on the Conservative Party let alone TWICE. That puts him to the right of Joe Manchin. I don’t care if Hochul sneezes wrong in the next 4 years, Democrats should impeach her if she does. I don’t know anything about the Lt. gov of New York but am sure they would be light years better than her. She’s an insult to Democrats in a blue state. Forget 2026, I hope she doesn’t get to serve out her term.
NY senate Democrats should absolutely Mitch McConnell this nomination. I don’t know the rules in New York but regardless of what they are, I would rather see the seat go vacant & leave the court a 3-3 split then see this nomination go to the floor which you get bet your ass the Republicans will be smart enough to provide the votes to confirm.
Here’s a recent article on Caitlin J. Halligan, the lawyer governor Hochul is getting to fight her own party for a nominee they don’t want…
WOW! I just finished the hearings in real time. All 5 hours (shhh, don’t tell my boss!)
A few takeaways
The nomination is lost… for now.
As many of you know, my opposition to the LaSalle nomination is complete. However, I’d be very surprised if the committee vote just now is the final word. I just don’t think that it can be sustained with all the parliamentary procedures and legal maneuvering that Hochul has threatened to initiate.
Hector LaSalle would absolutely be another Janet DiFiore.
If this wasn’t clear before, it should be clear now. This isn’t just for the fact that he lists her as one of his five top judicial influences. But because he rules almost identical to her.
A note on the party line in NY.
Again, I am as anti-LaSalle as it gets. But running on cross-parties in NY is absolutely the norm for judges. Put another way, I have never seen or voted on a ballot without such a cross-party endorsement. So it is really not remarkable IN NY that judges run on multiple parties, including the Conservative Party. Yes, I have always hated this, but this is what the most liberal judges do, and the most conservative ones, too. I guess it’s just a uniquely NY way of electing judges. I’m actually surprised to see Hoyleman make such a big deal out of it.
Between now and 2026, this woman could solve world peace and world hunger now and I will still enthusiastically vote against her if she runs again in the primary/general election. This moronic nomination is such breathtakingly bad politics that it doesn’t matter what she does next. To put Dems in this position, even AFTER loud warnings, shows that she should have just stayed a conservative congresswoman.
The only problem is I don’t know who acceptable could run against her and win. That would have been Tish James but I now have a political vendetta to vote against every single politician that have come out in support of this nomination. As well as not supporting them (if I can’t vote against them, like Jeffries).
The last time I was this amped up about NY politics was during the reign of terror of the IDC until we finally defeated them. Huchul should be defeated. Hopefully, she leaves before.
We’ll have to wait and see.
Thanks for the recap Gavi…. FIVE hours, OMG. And yes, sadly I agree with you about 2026. I am usually team “Lesser of two evils” but at this point I would prefer a Republican over Kathy Hochul, even a MAGA Republican. I would rather New York senate Democrats fight Governor John Eastman over horrible conservative judicial picks, which would lead to a landslide victory in the next election, then to fight a horrible Democrat governor like Kathy Hochul.
I swear if she so much as jay walks in the next four years I would support her impeachment. New York Democrats should use her as a foil to get the state party back on track from the disaster it currently is in.
NY senate judiciary committee just rejected LaSalle 10-9 – close vote, but now Hochul will have to sue to (maybe) move it forward. That would set up a real fight with the legislature and likely make Hochul even more enemies, making a credible primary challenge even more likely.
I also can’t imagine that his performance today (and the unanimous Republican backing) did him any favors with the rest of the Democratic conference – he still stands by his decision that allowed jurors to be excluded based on skin color despite SCOTUS having banned racial discrimination in jury selection in Batson (a decision that the NY court of appeals quickly reversed). That one hasn’t gotten as much publicity as the others, but really emphasizing it should certainly make it harder for Black NY State Senators (and most importantly, Stewart-Cousins) to justify confirming him.
I just read up on the Lt. Governor of New York. Antonio Delgado turns 46 next week & is African American, Mexican, Colombian, and Venezuelan. I don’t know much about him but on his worst day he has to be better than Hochul.
No Republican supported him. They voted to advance his nomination without recommendation.
So the actual vote was:
2 – AYE
10 – NAY
7 – Without Rec
Batson challenges are a bit different. That’s explicitly race.
LaSalle choose to conservatively interrupt another caselaw in a case about **skin color.**
Thankfully, the first black judge overruled him and set a first in the nation precedent, that deals with skin color specifically.
Advance without recommendation would have still gotten him through to the full NY Senate though, right? So if one more Dem flipped, he would’ve made it through?
Yes I agree it was a case of conservative interpretation, which is the whole issue here – Dems should not be considering a judge who would interpret race as not including skin color unless forced to do otherwise (otherwise a prosecutor could always claim he was striking a juror for “skin color” and not race).
This is what disgusts me about the “Latinos for LaSalle” trash. They’re not even making the argument that he would represent progress for the everyday Latino/a’s rights to organize at work, get an abortion free of harassment from “crisis pregnancy centers,” or have a jury of their peers and not just conservative whites. They’re the type who would support Ted Cruz for president just because of his last name, and they care more about their own careers/having friends in high places than about the communities they’re supposed to serve. Truly the worst of the worst.
We have some new nominees !!!!!….A 1st Circuit nominee
Uuuggghhh… Michael A. Delaney turns 54 this July. Quite disappointing.
Judge Amanda K. Brailsford was born c. 1967 but it’s a red state so no disappointment there. The two Illinois judges we have discussed on previous threads.
Amanda Grailsford wasn’t on the panel we spoke of. I think I was right that Wendy OIson’s mishandling of the migrant child rape case disqualified her.
An interesting fact about Grailsford- she was appointed to the state Court of Appeals by a Republican Governor. She’s obviously a compromise candidate.
Didn’t have Delaney on my radar (guess Dana Remus passed on moving back to NH), but an older white moderate is pretty par for the course given that it’s Hassan and Shaheen.
Early signs suggest that the administration isn’t making any changes or nominating more liberal judges despite having a real Senate majority now, which is disappointing – though not entirely surprising given that it’s Biden. Bit of a bummer that CA1 has now become less diverse under Biden (all white except the PR seat, which of course has to go to a Puerto Rican), but Rikelman is definitely better than any judge of color that would’ve been more moderate.
I agree Hank. The two batches that we have received since 51 senators have been confirmed for an outright majority have been 2 of the 3 worst batches I’ve seen to date so far by Biden. Very disappointing. Perhaps he was vetting these nominees in case the Republicans won the midterms & didn’t want to turn them down after they had opened themselves up to the vetting process. If so, I truly hope there are better batches to come..
Hopefully Biden will send these names to the senate along with Wamble & the other remaining nominees from last year save Pocan & Rodriguez. As I’ve mentioned before, I’m becoming worried Biden will compromise on the 5th & 7th circuit vacancies too much. I truly hope not.
This is hilarious because I remember some in here saying that the 50-50 senate tied Biden’s hands in not being able to nominate more liberal candidates. Well, what’s the excuse now?
If we’re getting Republican, old, and centrist nominees in a blue states, please please don’t hold your breath for someone decent for the 5th.
Yup, I’ll admit I was one of the ones that thought the 50/50 senate was holding Biden back. Hell we were getting better nominees when we had a 49-50 senate & Leahy out two months. These two batches are truly disappointing. Honestly out of the 10 nominees we have gotten since 51 senators, only Mónica Ramírez Almadani is the only one of the 10 that I couldn’t see nominated as a package deal with Trump.
I truly hope these are the worst two batches, but I will admit I am worried about the 5th circuit seat today then I was yesterday.
After 2+ years of Biden and federal judicial nominations, I think we have a good sense of the type of nominator Biden is. A mostly passive one. Now, this is obviously just my assessment based on what we have seen, nominations announced, vacancy backstories we’ve found out, etc. Please feel free to present any opposing arguments or pick a part my views. It is, after all, an opinion.
First, a thought experiment: think of all Biden’s nominees thus far. What are the main threads that tie them all together to give them a distinctive Biden flavor? I would say demographic and professional diversity.
I think that’s where Biden’s contribution to the discourse on judges stops. He gives senators a basic guidelines and asks them to give him names that largely reflects that. Everything else, I think this WH is remarkably hand off on selection.
Remember the thought experiment above? Most of the judges that come to mind can be linked right back to the senator/home state point person, for good or ill. Whether it’s Roopali Desai, Jennifer Reardon, Rachel Bloomekatz, Holly A. Thomas, Robert Kirsch, Chad Meredith, etc. A counterargument here is, well, most presidents rely on home state input. Of course, but to me, it seems that Biden outsource it by and large, as long as the demographic and professional diversity is considered in some cases. And other admins are usually much more hands on when it comes to circuit court vacancies.
Who here thinks that the Biden people was first to float Julie Rikelman? But he went on with it.
How about Sarah Miriam? Or Nancy Abudu? Or John Z. Lee?
There are, of course, exceptions to this, like the SC 4th Circuit and LA 5th Circuit seats.
Appointees to the DC circuit help with this point, no senators to lead on. KBJ and Pan were more or less run of the mill elevations, despite what we think of Pan. Childs is really only as a consolation for passing her over on SCOTUS. Garcia is a most welcome out of character nominee.
The MD 4th Circuit backroom drama cements my point, being the most stark exception to the rule, and God knows why. I mean, how bad can the Cardin pick be for Biden to finally push back.
The lack of more red state nominees is another illustrative point. So far, of the GOP senators in a red state who have commented have said that admin hasn’t really engaged with them on district court vacancies.
My main point here is to say that I think we now have a clear understanding of the Biden WH’s judicial selection approach: Accept and nominate them (Chad Meredith and all) as they are recommended.
With this opinion, I just wish the Biden folks would push back more frequently and more forcefully against some of the candidates. The NJ bench would be a more beautiful place.
Yes amen to everything you said @Gavi – the Trump administration (and Bush before him) was much more proactive in picking their nominees, which sometimes (rare, but it happens) meant their first choice didn’t get confirmed. Whether we like it or not, it seems like Dems are still largely asleep at the wheel and a progressive is unlikely to get through the nomination/confirmation process without a champion in the Senate. Seems like energy would be best spent lobbying senators to make progressive recommendations – I’m not sure how much that is happening now, but it seems easier than getting Ron Klain’s ear for one thing.
Also, it’s interesting that Biden’s white male appellate nominees (Heytens, Stark, Johnstown, and now Delaney) have been neither professionally nor personally diverse. Makes me think that the two criteria you mentioned aren’t even deal breakers for Biden if the senators insist hard enough, so I’m wondering what his bare minimum actually is. Cardin must trying to nominate Larry Hogan or some other Republican for Biden to actually push back for once.
Very true Gavi. Even in the cases where Biden showed backbone such as with Andre Mathis, it initiated with a Democrat congressman recommending him. That congressman is no longer in the House so if the vacancy had happened this year, we probably would have gotten Camille McMullin instead.
I looked through all of the circuit court nominees SJC questionnaires previously. From what I can remember outside of the DC circuit, the only nominees the administration reached out to directly was Tiffany P. Cunningham, Leonard P. Stark, Andre Mathis (Via Democrat Congressman’s recommendation), Dana Douglas (Through Cedric Richmond recommendation) & Nancy Abudu (She did not indicate on her questionnaire if Ossoff and/or Warnock was deeply involved, she just said The White House reached out to her).
Steve Cohen, the Democrat who recommended Mathis, is still in office. Jim Cooper of Nashville is the one who was drawn out by Republican gerrymandering – it will be interesting to see what happens if Jane Stranch on the 6th goes senior. Cooper was definitely a moderate, so it may be for the best that Biden doesn’t rely on his recommendation (though Stranch is a wonderful judge).
My guess is that McMullen won’t get the nomination because she’s from Memphis and Stranch’s is now the only Nashville seat, but I will watch to see if the TN senators wise up after the mess they made with Mathis.
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Ah thanks for the clarification, Hank. And yes, the duty station change would probably eliminate McMullin if either of the two remaining judges were to retire that are eligible. Although I think McMullin would be a perfect consensus candidate for the district court.
Tennessee has three Circuit Judges. Two are from western Tennessee, the other from central Tennessee. You might see a push to find a Circuit nominee from eastern Tennessee.
I think that Biden is relying heavily on the Senators and White House Counsel’s office to do the heavy lifting with regard to nominees. I don’t as many nominees that the White House already had its sights on as with the Trump White House.
When I say Biden I obviously don’t mean Joe Biden himself. We usually mean his nominations team, including Counsel.
Cardin seems to be a middle-of-the-road Democrat. The disagreement might not be ideological but could be personal. Nevertheless, Cardin is a downgrade – 20 years ago Maryland had 2 very progressive senators (Barbara Mikulski & Paul Sarbanes).
Also, the only time Menendez objected to a Democrat nominee was for the wife of someone who investigated him for corruption. Biden should be able to get whoever he wants in NJ so long as they have no ties to anyone investigating Menendez.
Couple of thoughts on Lasalle as someone who lives in NY.
We should celebrate Lasalle’s defeat but I would also caution people this doesn’t mean Hochul is going to go for the most liberal name on the list as the replacement nor can you expect the level of cooperation between the moderate/liberal Democratic wing that has come out against Lasalle to occur again.
There were multiple issues with him as has already been pointed out that aren’t likely to pop up with other nominees and him being seen as tough on crime is NOT going to be viewed as a bad thing to many, especially since that is an issue that hurt NY Democrats to a degree (many Democratic voters shifted right.)
As I said in another thread, NY isn’t as deep blue as folks think it is and while she did burn political capital on this, you aren’t going to see a united front if primary challenges etc. are floated.
Bottom line, there will be fallout from this but it won’t be just limited to Hochul.
Progressives better be ready for the attacks that will be coming their way from some Latino groups who will view this as an attack on them personally along with other groups who do vote Democratic but voted GOP due to their concerns on crime this past Fall.
That will still be an issue and the response has to be better then what it’s been the past couple of years.
Bottom line, Hochul is a lousy politician but progressives can’t get ahead of themselves either.
Back to talking about other judges…
@Zack I’ve seen you make this point several times now and it’s a fair one, but no one is actually thinking Hochul’s going to pick Corey Stoughton for example. If LaSalle still gets confirmed, it will be because Troutman (another Hochul nominee FYI, so not impossible) sides with the conservatives on the NYCOA and rules that the Senate has to have a floor vote. Otherwise it’s going to be sent back to the nominating committee, which will face a lot of pressure to pick a Latino judge that is broadly acceptable to Dems (and there will be more scrutiny on that committee after all of this – not to mention the fact that it kept all three sitting COA judges of color, including Latina Jenny Rivera, off the final list).
And again, “Latinos for LaSalle” certainly don’t represent all NY Latinos on this issue, nor will the average Latino voter care – especially if another Latino ends up being on the court. Your framing of it being “progressives” who have to be concerned about any backlash isn’t even correct because LaSalle’s nomination has largely been on the rocks because of organized labor, many of whom are heavily Latino. And the Latino political leaders advocating loudest for LaSalle are also the ones who care most about their own power over any principles, so any shift to the Republican Party seems unlikely.
Likeliest outcome now is either Hochul sues and the NYCOA forces a LaSalle floor vote (which he could still lose) or the process starts over again and Hochul picks a mainstream Latino Democrat and this all blows over in a few months. Anyone part of the anti-LaSalle effort should not be so quick to forgive that witch Hochul though.
You forget that it’s back to the drawing board for the commission to send Hochul a new list. And who know who’ll apply let alone be the finalists.
If todays action does indeed mean a permanent defeat of the LaSalle nomination, I hope the commission sees it as a shot across the bow.
Oh I think Hochul has burned plenty of bridges with this but I also think some folks are getting ahead of themselves as well.
As to the nominees we saw today, I think it’s clear by now (with some exceptions) that Biden defers to Democratic senators in whom the nominees are which is how we get amazing nominees like Myrna Perez and Julie Rikelman on one hand but lackluster nominees like Michael Delaney that was announced for the 1st Circuit today.
We will be flipping a seat but not with a nominee that is as liberal as he could be along with the fact he’s on the wrong side of 50.
Annoying since the 1st Circuit will soon be the only appeals court Democrats fully control.
Not worried about the nominees for the other seats because as shown by the 4th Circuit standoff, if push comes to shove Biden has no issues with saying no.
Just wish he had with a couple of the New Jersey nominees.
The commission as it stands right now still has plenty of Cuomo/Difoire allies.
I don’t see them caving easily.
At the end of the day, I see a centrist winning the day.
Dies anybody know what it would take to abolish the commission & just Allie the governor to pick their own nominee altogether? Is it written in the NY constitution or is it like blue slips, something that is more of a tradition that can be discharged with a simple vote?
As to my hope, as I’ve said before I wish Jorge Rodriguez would apply & be selected. That would solve multiple problems from judge Hurd rescinding to Hochul still being able to pick a Latino. And in his case it would be one who is actually close to her while also being progressive.
The commission nominated Mendelson-Richardson, Gluck, and Stoughton (though Stoughton just as a courtesy tbh) – it has shown that it can nominate mainstream Dems/candidates acceptable to mainstream Dems, which again is all most Dem constituencies are asking for.
I do wonder how much the rest of the names were just window dressing so Hochul would pick LaSalle, but this will be the most scrutiny the commission has ever gotten. Any members looking to keep their appointments would be playing with fire if they nominated another conservative Latino, but I’ll admit that I wouldn’t trust the DiFiore and Cuomo cronies any further than I can throw them. Any decent political outlet should be looking into the DiFiore-nominated members in particular – given how corrupt DiFiore was, I wouldn’t be surprised if something comes out about them.
And @Dequan yes, the commission is established by Article VI, Section 2 of the NY Constitution so it’s not changing anytime soon.
Commission has been in place since the 1970’s so getting rid of it would be no easy task.
I do agree nominating Jorge Rodriguez would solve a lot of issues from righting the wrong done to him by Judge Hurd to appeasing many in the Latino community and while he’s not a far left liberal, IMO he would be a nominee most people would accept.
Here’s hoping that happens once this pointless exercise if futility by Hochul comes to it’s end.
I’m willing to speculate on the Delaney nomination. Joe Biden is unpopular in New Hampshire right now and the state’s Congressional delegation is p.o.’d at him for removing its first-in-nation primary. The Senators want the nominee to be a registered Democrat who will generate no controversy at all.
John Delaney is an Irish Catholic who prosecuted some high profile murder cases and worked for a highly popular Governor who’s remembered fondly. He looks to be a traditional, no risk nominee.
Some of us had guessed the eventual nominee would probably be somebody close to one of the senators, I just didn’t count on a former Attorney General in his mid 50’s. Him being a former legal counsel to a former governor isn’t a big surprise. I’m sure his work in the Consumer Protection Bureau put him over the top.
I didn’t think of the first-in-nation primary issue but that could have played a role in the decision as well. I’m sure this is the type of nominee Cardin is pushing for in Maryland. I just hope Biden doesn’t cave there. Mario Garcia is probably the best-case scenario for the 7th. I’d be fine with him even at 50 years old because at least he adds diversity & would be the circuit’s first Hispanic. I am readying myself for a disappointment for the 5th. After these last two batches, I’m expecting one of the district court judges.
Biden’s unpopular everywhere, and nothing suggests he’s more or less unpopular in NH than elsewhere. I don’t even think that much thought went into this decision – Shaheen and Hassan are pretty bland senators, so of course they picked someone involved in NH Democratic politics (which tends to be pretty moderate). Given that Delaney was the former AG, he’s naturally well connected and would likely get this seat – I don’t know if many other former state AGs who have gotten the nod, as they all seem to prefer being politicians to judges.
This whole first-in-the-nation-primary angle is quite a hot take that stretches very thin. This is a long time vacancy. It wopuld be weird to hold up a recommendation for something that hasn’t happened.
As with my point from last night, we should shift our expectations from the Biden team and toward home staters. You cannot expect a Julie Rickelman from Shaheen and Hassan. I guess we should be glad that the nominee isn’t Kelly Ayotte, another former AG.
I get having gripes with Biden (especially over the Chad Meredith fiasco) and the fact many Democratic Senators aren’t as progressive as some folks like but let’s be real, the idea that Kelly Ayotte was ever going to be considered as a nominee is absurd, especially given how nasty the one senate race between her and Hassan was.
Shaheen & Hassan are centrists, not Republicans.
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I would venture that you’re one of only a few (if any) who took that sarcasm literally.
My apologies, hard to tell sometimes.