Judge Mustafa Kasubhai made history in 2018 as the first Muslim-American on the federal bench (albeit not in a lifetime appointment). He has now been nominated to such a position by President Biden.
Background
Born in Reseda, California in 1970 to an Indian immigrant family, Mustafa Taher Kasubhai received a B.A. from the University of California, Berkeley in 1992 and a J.D. from the University of Oregon School of Law in 1996.
A year after graduation, Kasubhai opened his own law practice in Eugene, Oregon, which he maintained until being appointed to the Oregon Workers’ Compensation Board in 2003.
In 2007, Governor Ted Kulongoski appointed Kasubhai to the Lane County Circuit Court. In 2018, Kasubhai was chosen to be a U.S. Magistrate Judge with the U.S. District Court for the District of Oregon, where he currently serves.
History of the Seat
Kasubhai has been nominated for a seat on the U.S. District Court for the District of Oregon. This seat will open on December 29, 2023, when Judge Ann Aiken moves to senior status. Kasubhai was among six candidates recommended to the White House by Oregon Senators in June 2023.
Legal Experience
Kasubhai started his legal practice in Eugene Oregon in 1997 and maintained that practice until his appointment to the Oregon Board of Workers’ Compensation in 2003. His practice consisted largely of representing plaintiffs in workers’ compensation claims and in personal injury suits. In addition to a heavily administrative practice, Kasubhai also tried ten jury trials. Notably, Kasubhai represented the daughter of a decedent who died of carbon monoxide poisoning after the use of a propane heater in a tent. Kasubhai represented the plaintiffs in a 8-day jury trial which ended in a verdict for the plaintiff, which was subsequently affirmed on appeal. See Benjamin v. Walmart, 185 Or. App. 444 (2002). Kasubhai also represented a worker who cracked a tooth on an employer-provided snack in administrative proceedings and before the Oregon Court of Appeals. See Liberty Northwest Ins. Corp. v. Nichols, 186 Or. App. 664 (2002).
Jurisprudence
Kasubhai served as a Circuit Court Judge from 2007 to 2018. In this role, he served as a primary trial judge, supervising criminal and civil cases. In a notable decision later affirmed by the Oregon Court of Appeals, Kasubhai denied a motion to suppress, finding that the defendant, as a guest in the home being searched, lacked a privacy interest implicating the Fourth Amendment. See State v. Gonzalez, 292 Or. App. 342 (2018). In another notable decision, Kasubhai instructed a jury that drug use, drug dependence, and drug-induced psychosis did not constitute mental diseases or defects that affected the defendant’s culpability in murdering his girlfriend, which the Oregon Court of Appeals affirmed. See State v. Folks, 290 Or. App. 94 (2018).
Since 2018, Kasubhai has served as a federal magistrate judge for the U.S. District Court for the District of Oregon, in which role he handles pretrial release, discovery matters, as well as cases where parties consent to his jurisdiction. Among the notable cases he handled, parties consented to have him hear a “rule of reason” Sherman Act claim regarding a collective decision by Defendant neurologists to stop covering the Plaintiff’s calls. See Ireland, M.D. v. Bend Neurological Associates, et al., No. 6:16-cv-02054-MK, 2021 WL 1229937 (D. Or. Mar. 31, 2021). Kasubhai granted summary judgment to the Defendants on the claims, which was affirmed by the Ninth Circuit. See 2023 WL 2783240 (9th Cir. Apr. 5, 2023). In another decision pending on appeal, Kasubhai granted summary judgment in favor of a union, finding that its withdrawal of union fees from the plaintiff did not violate the First Amendment because it was not a state actor. See Cram v. Local 503 SEIU, 590 F. Supp. 3d 1330 (D. Or. 2022).
Political Activity
Kasubhai has a handful of political donations to his name, all to Democratic candidates.
Writings and Statements
Kasubhai has written and spoken frequently on the law, particularly in favor of greater diversity both on the bench in the legal community, with some of his expressed views being raised in criticism at his confirmation hearing. See also The Honorable Mustafa Kasubhai, Old Oregon, Autumn 2009 (available at https://scholarsbank.uoregon.edu/xmlui/bitstream/handle/1794/10018/OQ_Autumn09.pdf). However, Kasubhai’s writings extend back to his law student days, when he authored an article critical of state rape laws that required showings of force in order to criminalize rape, arguing that the laws should be based around consent (or lack thereof) demonstrated by the victim. See Mustafa T. Kasubhai, Destabilizing Power in Rape: Why Consent Theory in Rape Law is Turned On Its Head, 11 Wis. Women’s L.J. 37 (1996-1997) (available at https://api.law.wisc.edu/repository-pdf/uwlaw-library-repository-omekav3/original/03d50dd18ada15fb757ee7dce07c20df3c1172d1.pdf).
Overall Assessment
Reviewing Kasubhai’s judicial record reveals some contrast with the portrait painted by critics at his confirmation hearing. His rulings have largely been affirmed and do not reveal anything out of the judicial mainstream. Judge Michael Mosman, probably the most prominent conservative voice on the Oregon district court bench, has written in support of Kasubhai’s nomination. However, despite all of this, it is likely that Kasubhai’s nomination will prove controversial based on his past writings. Nonetheless, if Democrats buckled down, they likely could confirm Kasubhai in due course before Judge Aiken moved to senior status.
The Vetting Room 
Mustafa Kasubhai would be the third Muslim federal Article III judge ever. This is a great step for diversity on the bench. He seems to have a solid progressive background. I gave him an A & if he was 5 or more years younger I would have given him an A+. Manchin may cite against him but I believe he will be confirmed with the possible need of VP Harris tie breaking vote.
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Of all the other names recommended by Wyden and Merkley (https://www.wyden.senate.gov/news/press-releases/wyden-merkley-send-names-of-six-finalists-to-white-house-for-upcoming-judicial-vacancy-on-us-district-court-in-oregon) for the other Oregon vacancy, here’s how I would rank them in terms of preference:
1. Nadia Dahab (born c. 1982): Young, POC, and most of practice has been related to class actions, consumer rights, civil rights, and immigrant/ refugee rights.
2A. Kevin Diaz (born c. 1971): Latino (like Marco Hernandez, the judge he’d be replacing) who currently serves as Chief Legal Advocacy Officer/ General Counsel at Compassion & Choices, an organization that advocates for medical aid in dying, sure to be controversial. He used to be Legal Director at the ACLU of Oregon and also worked for the Northwest Justice Project.
2B. Monica Goracke (born c. 1975): Executive Director of the Oregon Law Center, a legal aid organization. Formerly a Staff Attorney at Disability Rights Advocates, as she herself has some type of physical disability.
4. Amy Baggio (born c. 1973): A Multnomah County (Portland) Circuit Judge who previously served as an Assistant Federal Public Defender.
5. Katharine von Ter Stegge (born c. 1976): Another Multnomah County (Portland) Circuit Judge, but she was previously a prosecutor. You have to go back to her law school days at UVA (she graduated in 2002) to find anything progressive in her background but per her LinkedIn, she participated in the Death Penalty Clinic with the now-Virginia Innocence Project and the Rappahannock Legal Aid Clinic while a law student there.
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@Ethan
I mostly agree with your ranking. I would only change 2A to 2 & 2B to 3 because I think Kevin Diaz is that much of a better pick than Monica Goracke despite my plea for more disability judges. I do think Nadia Dahab is the best pick but the administration might go with Diaz.
It’s a hard sell to leave the court without a Hispanic judge. Especially after the way Marco Hernandez got on the court in the first place. Remember there was major blow back when the Oregon senators sent all straight White males as recommendations to president Obama & there was a backlash so they sent a second list which included Hernandez & he was ultimately chosen.
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Did not realize how male the Oregon district court is. Once Aiken leaves, Karin Immergut will be the only woman on the court.
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Adrienne Nelson was confirmed earlier this year. There would be two woman on the court regardless of who Biden picks for the remaining vacancy.
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Not sure how I forgot about Nelson. Yeah there would be 2 women on the court.
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Kasubhai had a difficult confirmation hearing, so it’ll take a while to confirm him. There is some chance he won’t be confirmed.
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A fine nominee. Like Mitch said, this one may be tough to confirm but I think it’ll ultimately get done.
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After watching the hearing, I’m skeptical about Kasubhai‘s chances of being confirmed more than any of Biden’s other nominees. With such a big backlog of nominees needing to be confirmed, a poor hearing, no bipartisan support coming and a lack of time prior to the 2024 election, it’ll be tricky to get him confirmed, and he may simply not have the votes when it is all said and done.
Not sure why it is a “hard sell” not to have a Hispanic judge in Oregon or any other state. Are the Democrats going to lose the election if a Hispanic is not chosen for a open district court seat? I’m extremely doubtful of that. Just pick the best and most qualified nominee for each seat, don’t overthink it.
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If Dale Ho got confirmed, I doubt Kasubhai won’t be. We have 51 Democrats now & one Republican is running for president & misses a lot of votes. It simply takes Schumer to coordinate between those logistics & the VP’s schedule.
As for why not having a Hispanic judge in the district is a hard sell, did you not see the story that led to Marco Hernandez, the first Hispanic federal judge & the judge who this vacancy is for, got on the bench. Are you suggesting the Hispanic community has LESS influence & sway today then over a dozen years ago???
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Of all the judges remaining to be confirmed by the senate, I don’t think any are as controversial as Abudu, Ho, & Bloomekatz. So if those 3 can get confirmed, I can’t see of the current nominees (and future ones) having any difficulty
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Well it’s the timing as well. Abudu, Ho, & Bloomekatz were all nominated in 2021-22 and confirmed in 2023. So progressive nominees could fail because of lack of time & a likely Republican senate in 2025. Abudu, Ho, & Bloomekatz would not have been confirmed had the Democrats not gained a seat in 2022.
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Look at the amount of time it took for Ho to get a confirmation vote. He needed all 50 non-Manchin Democrats to get confirmed, and as such his vote was delayed for months. Tim Scott doesn’t appear that he will be in the presidential race much longer, and as Gavi alluded to, Schumer has been avoiding controversial judicial votes when Scott hasn’t been present. If I had to guess, I do think Kasubhai will be confirmed, but I wouldn’t at all be surprised if he isn’t.
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@Frank
They too the months of August & October off along with the first half of November. They spent September primarily focused on confirming circuit court nominees which as we know take significantly more time than district court nominees. Fetterman won the senate race relatively early in November of last year so at worst Schumer knew Democrats would have a 50/50 split. That eliminated the need to rush confirmations before the end of the year. Then Warnock won in December but was out the entire time campaigning. It took a few weeks for them to vote on the committee structure. Both Feinstein & Fetterman went out for significant time shortly after that.
I know it sounds nice to say it took a long time to get Dale Ho confirmed but let’s look at the facts in the ground that led to that. It’s not like Schumer had 50 senators in session for all that time. He didn’t
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I agree. It’ll be tricky, but I think Manchin, Sinema, or both will eventually come around.
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Worth mentioning that Judge Simon reaches senior status eligibility next June. I wouldn’t be surprised if we see a third Oregon vacancy announcement in the near future.
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If that’s true @Rick, I can’t see why Kato, who was nominated in 2021 to a vacancy that’s been open since 2017, hasn’t been confirmed.
I think there are several who will get unanimous R opposition, and we’ll need every D. But that being said, as I said on another post, Schumer should still be teeing up the ones that will get R support (IT pair, Louisiana nominees, Ramirez) to make it so that he can pass the more difficult ones when he has full strength and the VP in town.
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Worth mentioning that Judge Simon reaches senior status eligibility in June. It wouldn’t be surprising if we see an announcement for a 3rd Oregon seat in the near future.
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I know it was mentioned on this blog last week it was rumored to be another Eastern District of Louisiana vacancy but it wasn’t posted on the federal judicial vacancy site. It’s posted now. Judge Eldon E. Fallon will go senior on January 1st.
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In news that no one will care about, the SJC site was updated to list Butler as a member.
For things that I’m sure I only care about, I imagine for the seating chart at SJC meetings, everyone on the Democratic side gets scooted up one seat and Whitehouse will sit next to Durbin? I also believe that means Booker gets to move from that kiddie desk (where he, Padilla, Ossoff, Welch, and presumably Butler sit) to the big kid desk.
I don’t know why, I have some interest in how Senators are seated in the chamber (for example, typically the most senior senator of a party will sit behind the party leader, like Robert Byrd did for the longest time and then Inouye after him, Leahy never did but Murray currently does).
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Your not the only one. I am interested in where the senators sit too… Lol
I never thought about Whitehouse sitting next to Durbin but yea I guess you’re right. It’s a shame he isn’t chairman but hopefully his day will come. He would be outstanding.
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Durbin might retire in 2026. If he does, it’s just a matter of Dems getting the majority again while Whitehouse is still in the senate.
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Never in a million years would I want someone who is still part of an all white club to be the chairman.
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@Frank
Haaaaaaaaa… You along with @Gavi preach pick the most qualified judicial nominee without taking diversity into the decision. NOW all of a sudden you want diversity for the next SJC chairman??? You have got to be kidding me… Lmao
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Don’t try and misconstrue what I meant. I have no issues with a different white male as the SJC chair.
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I did not misconstrue anything you said. You wrote & I quote “ Never in a million years would I want someone who is still part of an all white club to be the chairman.”
That doesn’t sound like you are solely picking the most qualified person for the job. That sounds like you’re taking race into consideration. Now I have no problem with that. I just have a problem with your inconsistency… Lmao
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Judge Algernon Marbley on the Southern District of Ohio is taking senior status upon confirmation of a successor. With JD Vance replacing Rob Portman here, I’d expect this vacancy to go unfilled.
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There was also a vacancy on the Northern District that opened up earlier in the month, I believe a Clinton appointee.
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Good luck working with JD Vance. But if Ted Cruz can turn in his blue slip for anyone, Vance might. The Northern District of Ohio vacancy is in Cleveland while the Southern District of Ohio vacancy (Marbley) is in Columbus.
For the Cleveland vacancy, there are three Magistrate Judges on my list that I think could be strong contenders:
-Judge Jennifer Dowdell Armstrong (born c. 1975): Pretty conventional background as a corporate law partner. She clerked for Clinton appointed Judge Solomon Oliver. She’s made small dollar donations to Biden. (https://www.akronbar.org/?blaction=showentry&blogentry=81002&pg=latestnews).
-Judge James E. Grimes Jr. (born c. 1970): Previously worked as a Navy JAG on the defense side and also as an Administrative Law Judge for the Social Security Administration and as a Trial Attorney for the DOJ Civil Division. (https://www.akronbar.org/?pg=LatestNews&blAction=showEntry&blogEntry=83277).
-Judge Amanda Knapp (born c. 1977): Like Grimes, also worked as an Administrative Law Judge for the Social Security Administration. Clerked for Judge Margaret Morrow (Clinton appointee on the Central District of California) and Judge Garland Burrell (G.W. Bush appointee on the Eastern District of California). (https://akronlegalnews.com/editorial/31213).
For the Columbus vacancy, there is are several from my list that I think could be strong contenders:
-Magistrate Judge Kimberly Jolson (born c. 1979): She served as Deputy Solicitor of Ohio from 2008-2009 (Ohio had a Democratic Governor and AG at the time) and previously clerked for Clinton appointed 6th Circuit Judge R. Guy Cole.
-AUSA Brian T. Martinez (born c. 1975): He serves as the Deputy Chief of the Criminal Division in the US Attorney for the Southern District of Ohio’s Columbus office and previously clerked for Clinton appointed Judge Thelton Henderson on the Northern District of California.
-Benjamin Mizer (born c. 1977): He currently serves as Principal Deputy Associate Attorney General for the DOJ in Washington. He is a former SCOTUS clerk (to Justice Stevens) and served as Solicitor General of Ohio from 2008-2011 (as mentioned before, Ohio had a Democratic Governor and AG at the time) but hasn’t worked in Ohio since then and would have to move back.
-Alexandra Schimmer (born c. 1976): She was the runner up for the 6th circuit seat that went to Rachel Bloomekatz and currently serves as the General Counsel of Denison University. She clerked for Clinton appointed 6th Circuit Judge R. Guy Cole and like Mizer, served as Solicitor General of Ohio but from 2011-2013 under a Republican Governor and AG.
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Apparently there’s an agreement for 40 amendment votes on this appropriations bill. So that’ll be the bulk of the week after todays executive nomination votes.
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Yea I figured no judges on week two. Probably not much next week either. Hopefully weeks 4 & 5 will be primarily on confirming judges before the Thanksgiving recess.
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Governor Kevin Stitt has come out against Sara Hill’s nomination. That makes me like her even more now.
(https://nondoc.com/2023/10/20/drummond-files-lawsuit-stitt-fills-state-board-criticizes-sara-hill-nomination/)
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41 roll call votes, that will take a while !
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At least they’ll be done with this “minimus” deal finally. It seems like a waste of everyone’s time, but I know a lot of their job is signaling.
I’d imagine next week is going to be spent on ambassadors and foreign aid. It seems those are the clear priorities.
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Hill and Russell were sent to the Senate officially today. It looks like Durbin voted in today’s first roll call vote so we should have full attendance for an SJC meeting this Thursday (although Padilla was a non-voter, we’ll see what happens there).
Whitaker’s vote on cloture was 94-0. I mean seriously, we couldn’t get a voice vote on that? The other day I randomly found a C-SPAN Senate recording from 7/15/02, where Smith (8th Circuit) was confirmed. There was a 94-3 cloture vote on Smith immediately followed by a voice vote for confirmation. I mean, do we really need a roll call vote when cloture is unanimous?
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Nevermind, Padilla is our COVID absence of the week!
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Governor Stitt really denounced Sara Hill’s nomination. He implied that she and Biden want to turn all of eastern Oklahoma into a massive reservation run by the Feds.
I think the Senators were reluctant to support Hill and only did so in exchange for the John Russell nomination.
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Not unexpected given it was the next possible hearing slot and it was hinted at in an article about one of the nominees (forgot off the top of my head), but the 11/1 hearing is posted on the SJC site, so everyone eligible for a hearing will likely have one, I’d think.
Tomorrow’s SJC meeting hasn’t officially been cancelled yet, Democrats are down Padilla. If the meeting is held most likely everyone but Lee and Kasubhai will be voted out.
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Happy Day That The SJC Sends More Nominees To The Floor Without Any Plan Or Commitment To Confirm Them to all who celebrate.
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@raylodato
Haaaaaa… That should be a national holiday
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@Dequan: I don’t think the economy could handle it. A holiday for this every month or so? Perish the thought.
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Every day that our government is not at work should be a national holiday. That ought to get them to work more.
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