Month: August 2023

Rich Federico – 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 the withdrawal of initial nominee Jabari Wamble, the White House is hoping for better luck with federal public defender Rich Federico.

Background

Richard E.N. Federico got a B.A.J. from Indiana University in 1999 and a J.D. from the University of Kansas School of Law in 2002. After graduating, Federico joined the U.S. Navy Judge Advocate Corps as a naval prosecutor, and shifted to being a defense counsel in 2008. In 2015, Federico became appellate defense counsel, while also serving as an Assistant Federal Public Counsel for the District of Oregon.

Since 2017, Federico has served at the Federal Public Defender’s Office for the District of Kansas, serving as Senior Litigator since 2020.

History of the Seat

Federico 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. The White House previously nominated federal prosecutor Jabari Wamble to fill the vacancy, and it preliminarily seemed that Wamble had a smooth path to confirmation. However, Wamble’s nomination was subsequently shifted to the U.S. District Court and then, in anticipation of a bad A.B.A. review, Wamble withdrew his nomination entirely.

Legal Career

Federico started his legal career as a naval prosecutor in the J.A.G. Corps, before switching to become a naval defense counsel in 2008. In the latter role, Federico served as defense counsel in the Office of Military Commissions, representing Guantanamo Bay detainees in trials before military tribunals for war crimes. See Lieutenant Commander Rich Federico, The Unusual Punishment: A Call For Congress to Abolish the Death Penalty Under the Uniform Code of Military Justice for Unique Military, Non-Homicide Offenses, 18 Berkeley J. Crim. L. 1 (2013).

Since 2017, Federico has served as a federal public defender for the U.S. Public Defender’s Office for the District of Kansas. Notably, Federico represented Tyler Bariss, a Kansas man sentenced to 20 years in prison for a “swatting” attack that led to the death of Andrew Finch. See Steve Almasy and Melissa Alonzo, His ‘Swatting’ Call Led to the Death of a Man. Now He is Going to Prison for 20 Years, CNN.com, Mar. 30, 2019, https://www.cnn.com/2019/03/29/us/swatting-suspect-20-year-sentence/index.html. Bariss plead guilty with both parties arguing sentence, with prosecutors requesting 25 years, while Federico requested 20. See id. Judge Eric Melgren went with the defense request, which was still well above the sentencing guidelines, which recommended 10 years. See California Man Behind ‘Swatting’ Call That Led to Fatal Shooting Gets 20 Years, CBS.com, Mar. 30, 2019, https://www.cbsnews.com/texas/news/california-man-swatting-call-fatal-shooting-gets-20-years/.

Political Activity

Federico has only two political donations to his name, one in 2020 to Democratic Presidential candidate Amy Klobachar, and one in 2022 to Republican Attorney General candidate Tony Mattivi.

Statements and Writings

In 2013, Federico authored a notable paper urging for the limited abolition of the death penalty under the Uniform Code of Military Justice, arguing to limit the penalty to homicide crimes. See Lieutenant Commander Rich Federico, The Unusual Punishment: A Call For Congress to Abolish the Death Penalty Under the Uniform Code of Military Justice for Unique Military, Non-Homicide Offenses, 18 Berkeley J. Crim. L. 1 (2013). Federico’s paper outlines the history of executions in military justice, and has been cited by the D.C. Circuit. See Jackson v. Modly, 949 F.3d 763, 771 n.6 (D.C. Cir. 2020).

In 2015, Federico testified as a witness before the Judicial Proceedings Subcommittee of the U.S. Department of Defense Judicial Proceedings Panel. Among the issues the panel was focused on was the rewriting of sexual assault statutes in order to make them more workable. In his testimony, Federico urged the definition of the term “incapable of consenting” in the statute as it relates to impairment from substances such as alcohol. Testimony starts at P. 253 line 15 (https://texasdefenselawyers.com/wp-content/uploads/2019/05/Transcript-2-1.pdf).

Overall Assessment

After the failure of the Wamble nomination, Federico has at least received a warm reception from his home state senators. Despite having served in court-appointed defense for the past fifteen years, Federico’s military background as well as his support of Mattivi should insulate him from claims that he is strongly left-wing.

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Judge Jeffrey Bryan – Nominee to the U.S. District Court for the District of Minnesota

Judge Jeffrey Bryan has a long history in the Minnesota legal community, having practiced law here for over a decade and then spent another decade as a state court judge. Bryan is now poised to join the federal bench.

Background

Bryan was born in El Paso, Texas, on April 16, 1976. Bryan attended the University of Texas at Austin, receiving a B.A. in 1998. He then attended Yale University Law School, graduating in 2002.

After graduation, Bryan clerked for Judge Paul Magnuson on the U.S. District Court for the District of Minnesota. He then joined the Minneapolis office of Robins Kaplan LLP as an associate. In 2007, Bryan left the firm to become a federal prosecutor with the U.S. Attorney’s Office for the District of Minnesota.

In 2013, Democratic Governor Mark Dayton appointed Bryan to a seat on the 2nd Judicial District of Minnesota, which covers Ramsey County (St. Paul).

In 2019, Governor Tim Walz appointed Bryan to the Minnesota Court of Appeals to replace Judge Heidi Schellhas. He continues to serve on that court to this day.

History of the Seat

Bryan has been nominated for a seat on the U.S. District Court for the District of Minnesota to replace Judge John Tunheim, who will take senior status upon appointment of a successor.

Legal Career

Bryan began his legal career as an associate at Robins Kaplan LLP, where he worked on complex civil litigation. However, Bryan also represented indigent clients as part of appointments as a Special Assistant Public Defender. See, e.g., State v. Fenning, No. A04-275 (Minn. Ct. App. 2005).

In 2007, Bryan shifted to become a federal prosecutor with the U.S. Attorney’s Office for the District of Minnesota, where he worked on white collar, gang, and drug trafficking cases. See, e.g., United States v. Mims, 567 F. Supp. 2d 1059 (D. Minn. 2008). Bryan also argued cases before the Eighth Circuit. See, e.g., United States v. Ybarra, 580 F.3d 735 (8th Cir. 2009) (affirming conviction for conspiracy to distribute marijuana).

Jurisprudence

Bryan was appointed to be a District Court judge in St. Paul by Governor Mark Dayton in 2013 to replace Judge J. Thomas Mott. In this role, he served as a primary trial judge, supervising criminal and civil cases. Bryan also served at Co-Chair of the Ramsey County Juvenile Detention Alternatives Initiative.

In 2019, Governor Tim Walz appointed Bryan to the Minnesota Court of Appeals, replacing Judge Heidi Schellhas, and Bryan has served on the court since. Of his recent opinions from the Court of Appeals, Bryan reversed a district court decision denying a motion for postconviction relief, finding that the district court had erred in finding that the claim was procedurally barred. See Edwards v. State, No. A22-1221 (Minn. Ct. App. 2023).

Writings

In 2006, Bryan authored an article discussing the intersection of feminism and Christianity. See Jeffrey M. Bryan, Sexual Morality: An Analysis of Dominance Feminism, Christian Theology, and the First Amendment, 84 U. Det. Mercy L. Rev. 655 (2006-2007). Specifically, Bryan discusses the role of Christian feminists in narrowing a gap between Christianity and feminism, and outlines points of convergence that can be found. See id.

Overall Assessment

Senator Amy Klobuchar has had a significant degree of success in ensuring the smooth confirmation of judges in her home state. Based on his record, there is little to suggest that Bryan will be an exception, and it is expected that Bryan will join the Minnesota bench before the end of the year.

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Judge Joshua P. Kolar – Nominee to the U.S. Court of Appeals for the Seventh Circuit

After the smooth confirmation that Judge Doris Pryor saw to an Indiana seat on the Seventh Circuit, the Biden Administration has tapped another Indiana magistrate judge, Judge Joshua Kolar, to fill a second seat on the Seventh Circuit.

Background

Kolar received a B.A. from Northwestern University in 1999 and a J.D. from Northwestern University Law School in 2003.

After graduating law school, Kolar joined Mayer Brown as an associate, with a year hiatus clerking for Judge Wayne Anderson on the U.S. District Court for the Northern District of Illinois. In 2007, Kolar then joined the U.S. Attorney’s Office for the Northern District of Indiana, rising to become the National Security Head in 2015 (after a year in active duty in Afghanistan).

In 2019, Kolar was appointed to be a U.S. Magistrate Judge for the U.S. District Court for the Northern District of Indiana, where he currently serves. Kolar also serves as a Lieutenant Commander for the U.S. Navy Reserve.

History of the Seat

Kolar has been nominated for an Indiana seat on the U.S. Court of Appeals for the Seventh Circuit. This seat opened upon the death of Judge Michael Stephen Kanne on June 16, 2022.

Legal Career

While Kolar started his career at the firm of Mayer Brown, he spent the most significant portion of his pre-bench career at the U.S. Attorney’s Office for the Northern District of Indiana.

While at the office, Kolar handled a number of appeals before the Seventh Circuit. See, e.g., United States v. Allday, 542 F.3d 571 (7th Cir. 2008) (affirming conviction and sentence for receiving sexually explicit images and videos of minors). For example, Kolar argued to defend sentences imposed against two codefendants in a bank robbery case. See United States v. Quintero, 618 F.3d 746 (7th Cir. 2010). The codefendants challenged the sentence they received, with one claiming that he failed to receive a guidelines reduction for acceptance of responsibility, while the other argued that her guidelines were improperly calculated. The Seventh Circuit, however, affirmed the sentences in both cases. See id. In another case that Kolar argued before the Seventh Circuit, the court affirmed the denial of the defendant’s motion for resentencing after the U.S. Supreme Court ruled that the federal sentencing guidelines were advisory. See United States v. Guyton, 636 F.3d 316 (7th Cir. 2011).

Political Activity

Kolar has a handful of political donations to his name, including two to Senate Majority Leader Richard Durbin and two to Presidential candidate John Kerry, both Democrats.

Jurisprudence & Reversals

Since 2019, Kolar has served as a U.S. Magistrate Judge for the U.S. District Court for the Northern District of Indiana. In this role, he presides over settlement, preliminary hearings, bail, and any cases where the parties consent to his jurisdiction.

Among the notable cases that Kolar has handled as a magistrate, he partially denied a motion by attorneys for former Seventh Circuit Judge Richard Posner seeking dismissal of all claims by Brian Vukadinovich, who argued that Posner owed him $170,000 for his work at the Posner Center for Justice for Pro Ses. See Jacqueline Thomsen, Court Says Former Judge Posner Should Face Some Claims in Wage Case, Reuters, June 22, 2023, https://www.reuters.com/legal/government/court-says-former-judge-posner-should-face-some-claims-wage-case-2023-06-22/.

In a notable opinion, Kolar remanded a damages claim against State Farm Insurance back to state court, noting that the defendant filed to meet the 30-day clock for removing the case to federal court. See Tedesco v. State Farm Fire and Cas. Co., 599 F. Supp. 3d 750 (N.D. Ind. 2022).

In another notable opinion, Kolar denied a motion to quash a subpoena filed for records of a psychotherapist who counseled the plaintiff, declining to answer the novel legal question of whether a psychotherapist-patient privilege existed in Indiana, but instead noting that, even if the privilege existed, it had been waived. See Doe v. Purdue Univ., Cause No. 2:17-CV-33-JPK (N.D. Ind. Jan. 11, 2021).

Overall Assessment

As of this point, Judge Kolar looks likely to share the smooth confirmation that his fellow magistrate had last year. There is little in his background that is likely to ignite opposition, and his military background is also likely to draw support. As such, it is fairly likely that Kolar will be confirmed before the end of the year.

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Judge Eumi Lee – Nominee to the U.S. District Court for the Northern District of California

A year after naming Judge Trina Thompson to the U.S. District Court for the Northern District of California, President Biden has nominated her Alameda County colleague, Judge Eumi Lee, to join her on the Northern District bench.

Background

Lee got her B.A. from Pomona College in 1994 and her J.D. from the Georgetown University Law Center in 1999. After graduating, Lee clerked for Judge Jerome Turner on the U.S. District Court for the Western District of Tennessee and then for Judge Warren Ferguson on the U.S. Court of Appeals for the Ninth Circuit.

Subsequently, Lee joined Keker & Van Nest, shifting in 2005 to become a Clinical Professor of Law at the University of California College of Law, San Francisco (formerly UC Hastings). In 2018, Lee became a Superior Court Judge in Alameda County, where she currently serves.

History of the Seat

Lee has been nominated to the U.S. District Court for the Northern District of California, to a seat vacated on May 17, 2023, by Judge William Orrick.

Legal Experience

Lee started her legal career in private practice at the firm of Thelen Reid & Priest, further moving to Keker & Van Nest. During her time in private practice, Lee represented the French company Societe Commerciale Toutelectric in an appeal from a default judgment imposed after striking its answer as a discovery sanction for failing to produce three witnesses for deposition. See Am. Home Assurance Co. v. Societe Commerciale Toutelectric, 104 Cal. App. 4th 406 (2002). The appellate court affirmed the sanction and the default judgment. See id.

While at Keker & Van Nest, Lee was part of the legal team representing Cobra Solutions, Inc., which successfully sued to have San Francisco City Attorney Dennis Herrera disqualified from an investigation of the company as Herrera had previously worked at a firm that had represented Cobra Solutions. See San Francisco v. Cobra Solutions, Inc.,135 P.3d 20 (Cal. 2006). After the trial court disqualified the City Attorney’s office and a divided panel of the Court of Appeals affirmed, the California Supreme Court, in a 5-2 decision by Justice Joyce Kennard, affirmed the disqualification of the entire office. See id.

Lee subsequently spent thirteen years as a clinical professor of law at the University of California College of Law, San Francisco (formerly UC Hastings), where she co-founded the Hastings Institute for Criminal Justice.

Jurisprudence

Since 2018, Lee has served as a judge on the Alameda County Superior Court. In this role, Lee presides over trial court matters in criminal, civil, family, and other state law matters. Lee was the first Korean American judge in Alameda County.

Statements and Writings

As a law professor, Lee has frequently written on spoken on issues in the law. Early in her time as a professor, Lee joined a Comment urging retention of robust protections under the Family and Medical Leave Act (“FMLA”) in response to a Request for Information issued by the Department of Labor under President George W. Bush.

Lee has written extensively on prison populations in California, the parole system, and the recurring problem of recidivism. Compare Eumi K. Lee, The Center to Real Reform? Political, Legal, and Social Barriers to Reentry in California, 7 Hastings Race and Poverty L.J. 243 (2010) with Eumi K. Lee, An Overview of Special Populations in California Prisons, 7 Hastings Race and Poverty L.J. 223 (2010). As part of her writing on criminal justice issues, Lee has been a sharp critic of the proliferation of websites publishing booking photos and keeping them up barring payment to take the photos down. See Eumi K. Lee, Monetizing Shame: Mugshots, Privacy, and the Right to Access, 70 Rutgers U.L. Rev. 557 (2017-2018). Lee has argued that such websites essentially ensure that the subjects are forever tainted by the arrest, when where the charges are eventually dropped. See Olivia Solon, Haunted By a Mugshot: How Predatory Web Sites Exploit the Shame of Arrest, Taipei Times, June 18, 2018, https://www.taipeitimes.com/News/feat/archives/2018/06/18/2003695058.

Political Activity

Lee has been a frequent donor to Democratic Party candidates throughout her career. California Attorney General Rob Bonta has been a frequent recipient of donations from Lee, having received around $1800 total.

Overall Assessment

If confirmed, Lee would join a federal court that already has a reputation as one of the most liberal in the nation. Lee’s record, while demonstrating her experience and scholarship with various areas of law, also suggests that she would sit within the liberal mainstream of that court. While Lee is likely to draw strong opposition through the confirmation process, she should nonetheless see confirmation by the end of the year.

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Joseph Laroski – Nominee to the U.S. Court of International Trade

Joseph Laroski has spent virtually his entire career in the field of international trade law, traversing both private practice and the federal government. He is now poised to join the Court of International Trade.

Background

Joseph A. Laroski received a B.S.F.S. from the Georgetown University Walsh School of Foreign Service in 1993, his J.D. from Fordham University School of Law in 1997 and an L.L.M. from the Georgetown University Law Center in 1998. After graduating, Laroski clerked for Judge Dominick DiCarlo on the U.S. Court of International Trade and then joined Skadden Arps as an Associate. In 2004, Laroski shifted to Wilkie Farr & Gallagher L.L.P. and again in 2006 to Vinson & Elkins. In 2008, Laroski joined the Office of the U.S. Trade Representative as Associate General Counsel.

In 2012, Laroski returned to private practice at King & Spalding. In 2016, Laroski spent a year as Attorney-Advisor to the U.S. International Trade Commission, before becoming Deputy Assistant Secretary for Policy and Negotiations and Director of Policy in the International Trade Administration at the Department of Commerce under Wilbur Ross. In 2021, Laroski returned to private practice at Schagrin Associates, where he currently works.

History of the Seat

Laroski has been nominated for a seat vacated by Judge Timothy Stanceu, an appointee of President George W. Bush, on April 5, 2021.

Legal Experience

Laroski started his legal career at the firm of Skadden Arps, where he worked with the International Trade Group working on antidumping and countervailing duty litigation. In 2004, he shifted to join the international trade practice group at Wilkie Farr, which shifted in 2006 to Vinson & Elkins.

In 2008, Laroski joined the Office of the U.S. Trade Representative, representing the U.S. government in trade dispute resolutions against other nations. In this role, Laroski was lead counsel in an international arbitration involving a dispute between the United States and the European Union regarding disparities between U.S. laws and a World Trade Organization Anti-Dumping Agreement. He also served as lead counsel for the United States in a suit involving Chinese steel tariffs.

Between 2012 and 2016, Laroski worked in both litigation and policy at King and Spalding. In this role, Laroski represented aerospace manufacturer Embraer and advised the Government of Brazil with regard to a dispute brought by the United States against the European Union for Airbus subsidies they provided.

In 2017, Laroski joined the U.S. Department of Commerce as Director of Policy to the Undersecretary of Commerce for International Trade. In that role, he advised Commerce Department officials on trade policy, being promoted to Deputy Assistant Secretary for Policy and Negotiations in 2020. In that role, Laroski also participated in the administrative litigation over the countervailing duty over softwood lumber (also participated in by fellow nominee Lisa Wang).

Since 2021, Laroski has worked at Schagrin Associates, returning to his work on antidumping and countervailing duty litigation. Notably, in this role, Laroski represented Daiking America Inc., a chemical products manufacturer, who intervened in a trade suit brought by Indian chemical producer Gujarat Fluorochemicals Ltd. See Guajarat Fluorochemicals Ltd. v. United States, 578 F. Supp. 3d 1346 (Ct. Int’l Trade 2022), available at https://scholar.google.com/scholar_case?case=512358947348396049&q=%22Joseph+A.+Laroski%22+OR+%22Joseph+Laroski%22&hl=en&as_sdt=6,47&as_rr=1.

Political Activity

Laroski’s sole contribution of record is to Matt Doherty, a Democrat who served on the Borough Council and as Mayor of Belmar, New Jersey.

Overall Assessment

Laroski has a strangely parallel life trajectory to his co-nominee, with the two both overlapping and intersecting at the Office of the Trade Representative and the Department of Commerce, as well as sharing expertise over anti-dumping and countervailing duty litigation. This experience will serve Laroski well on the bench and he is likely to see a smooth confirmation.

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