Ryan Park – Nominee to the U.S. Court of Appeals for the Fourth Circuit

On July 3, 2024, President Biden announced his intent to nominate Ryan Y. Park, the Solicitor General of North Carolina, to a seat on the United States Court of Appeals for the Fourth Circuit. If confirmed, Park would become the first Asian American, Native American or Pacific Islander to serve on the court. (1)

Background

Park is the son of Korean immigrants that emigrated from South Korea to North Carolina in the 1970s. His mom attended East Carolina University as an international student, eventually graduating with a degree in library science. The family settled in St. Paul, Minnesota, where Park was raised. He has written about his strict upbringing by his “authoritarian father”, citing examples such as, “marching through the snow, reciting multiplication tables” and having to stand “at attention at the crack of dawn reading the newspaper aloud, with each stumble earning a stinging rebuke. (2)

Park graduated from Amherst College in 2005, receiving his Bachelor of Arts. From 2006 to 2007, he would return to South Korea after he received a Fulbright Scholarship to teach English at a boys’ school. He returned to the United States of America, eventually graduating from Harvard Law School in 2010 with a Juris Doctor, summa cum laude.

Park served as a law clerk for Judge Jed S. Rakoff on the U.S. District Court for the Southern District of New York from 2010 to 2011, Judge Robert A. Katzmann on the U.S. Court of Appeals for the Second Circuit from 2011 to 2012, and for both U.S. Supreme Court Justices Ruth Bader Ginsburg and Justice David H. Souter from 2013 to 2014. He worked in the Office of the Legal Adviser at the U.S. Department of State from 2012 to 2013 and then as an associate at Boies, Schiller & Flexner LLP from 2014 to 2017. Park served as Deputy Solicitor General of North Carolina from 2017 to 2020. On March 18, 2020, North Carolina Attorney General Josh Stein announced that Park would become the Solicitor General of North Carolina on March 31st. (3) After his clerkship ended at the U.S. Supreme Court, Park took a short break from his career to be a stay-at-home dad after the birth of his daughter. (4)

History of the vacancy

On January 5, 2024, Judge James Wynn Jr. notified the White House he will be taking senior status upon the confirmation of his successor. This created a future vacancy for his seat on the United States Court of Appeals for the Fourth Circuit based in Raleigh, NC. President Biden announced his intent to nominate Park to Wynn’s seat. The court was once considered one of the most conservative of the nation’s 13 circuit courts. President Obama was able to put seven judges on the 15-judge court, including Judge Wynn. If confirmed, Ryan Park would be President Biden’s fourth judge on the court that covers the states of Maryland, North Carolina, South Carolina, Virginia and West Virginia.

Legal Experience

In addition to his position as the Solicitor General of North Carolia, Park lectures at Duke University and teaches at UNC Law School.(5)

In November 2019, Park delivered an argument to the U.S. Supreme Court in Allen v. Cooper. Serving in his capacity as Deputy Solicitor General, Park defended North Carolina’s sovereign immunity from a copyright lawsuit, eventually winning the case. (6)

On October 31, 2022, the U.S. Supreme Court heard oral arguments for Students for Fair Admissions v. University of North Carolina Oral Argument. As Solicitor General, Park represented the state concerning the UNC’s race-conscious admissions policy, among the factors used in UNC’s holistic applicant review. (7) Both Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina (8) were decided jointly on June 29, 2023, with the Court ruling in a 6-3 decision that race-based admissions adopted by both Harvard University and UNC were unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The U.S. Supreme Court effectively overruled Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003), which validated some affirmative action in college admissions provided that race had a limited role in decisions.

State v. Oldroyd was a 2022 case which involved the 1996 ambush murder of Jonesville, NC police Sgt. Gregory K. Martin. The case remained unsolved until 2014, when the people responsible for the murder were arrested, charged and convicted. One of the accomplices appealed his conviction, and the state Court of Appeals agreed and vacated the defendant’s conviction. Park appealed the case to the North Carolina Supreme Court, serving as lead counsel, which resulted in the decision being overturned and the accomplice set to serve his full sentence. (9)

Statements and Writings

Park has written numerous articles during his legal career.

What Ruth Bader Ginsburg Taught Me About Being A Stay-At-Home Dad (10)
The Supremely Old, Supremely Sharp, Supreme Court (11)
Why So Many Young Doctors Work Such Awful Hours (12)
My Friend and Boss, Ruth Bader Ginsburg (13)

Overall Assessment

Ryan Park is the third state Solicitor General that President Biden has nominated to a U.S. circuit court of appeals. Unlike the previous two, Toby Heytens and Anthony Johnstone, both of Park’s home state senators Thom Tillis and Ted Budd announced opposition to his nomination. The same day Park was nominated, Senators Tillis and Budd released the following statement…“This nomination is a non-starter and the White House has already been informed they do not have the votes for confirmation. While the White House has fallen short of engaging the advice and consent process in good faith for North Carolina’s judicial vacancies, we still hope to work together to find a consensus nominee who can earn bipartisan support and be confirmed.” (14) Both senators released an earlier joint statement regarding the vacancy, “While we have not yet been able to reach a consensus choice with the White House for the Fourth Circuit vacancy, we will continue our discussions in good faith to identify and agree upon a nominee.” (15)At a senate judiciary committee hearing earlier in the year, senator Tillis gave more detail into the talks with The White House regarding the vacancy stating, “The White House tried to jam him on a Fourth Circuit nominee.” A White House official disputed that characterization, arguing that the administration sought Tillis’ input on vacancies in North Carolina and the Fourth Circuit, including offering four candidates for the North Carolina senators’ consideration and considering four of their candidates. The administration chose to proceed with one of their candidates. (16)

Park’s confirmation may come down to another statement Senator Tillis has made regarding the nomination. Tillis stated he has two Democrat senators that have informed him they will not vote for the nominee The White House choose. With Democrats having a 51-49 majority in the U.S. senate, if Tillis is correct, that would dramatically reduce the chances of Park being confirmed this term. The White House would either need to convince a Republican senator to vote to confirm Park, schedule the cloture & confirmation votes for Park on days where the senate attendance would have one of the senators voting no to miss the votes or convince one of the two Democrat senators Tillis has gotten commitments from to vote no, to change their minds and vote yes. With Park achieving the law clerk trifecta of clerking on all three levels of the federal judiciary, along with being a Solicitor General who has argued cases at the U.S. Supreme Court, he should be able to hit the ground running on the Fourth Circuit Court of Appeals if he is confirmed. As the youngest of President Biden’s eight Asian American, Native American or Pacific Islander nominees to the federal circuit courts, Park could find himself on the short list for a Democrat president looking to nominate the first Asian American Justice to the U.S. Supreme Court for decades to come.

References

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Judge Gail Weilheimer – Nominee to the U.S. District Court for the Eastern District of Pennsylvania

In a sustained push to fill all the vacancies on the Eastern District of Pennsylvania, President Biden has put forward the third nominee in as many months to the Philadelphia based court, Judge Gail Weilheimer.

Background

Weilheimer received a B.A. from Hofstra University in 1992 and a J.D. from Hofstra University School of Law in 1995. Weilheimer then spent seven years as an assistant district attorney in Philadelphia. Between 2002 and 2013, Weilheimer was in private practice, cycling between various firms.

Additionally, in 2004, she was elected to be a Commissioner in Abington Township in Pennsylvania. Weilheimer held that post until 2008.

Since 2014, Weilheimer has been a judge on the Montgomery County Court of Common Pleas.

History of the Seat

If confirmed, Weilheimer would replace Judge Gene Pratter, who passed away on May 17, 2024.

Legal Experience

Weilheimer started her career at the Philadelphia District Attorney’s office, where she worked as a prosecutor. After leaving that office, Weilheimer’s next long-term position was at Frank, Rosen, Snyder & Moss, where she managed the firm’s criminal defense practice. Weilheimer subsequently moved to Wisler Pearlstine LLP, where she represented various public sector entities, including courts, schools, and municipalities. For example, Weilheimer represented Montgomery County in defending against a suit by a bail bondsman seeking to become a surety in Montgomery County. See Com. v. Liberty Bail Bonds, 8 A.3d 1031 (Com. Ct. Pa. 2010).

Jurisprudence

Since 2014, Weilheimer has served as a Judge on the Montgomery County Court of Common Pleas. In Pennsylvania, the Court of Common Pleas serves as the primary trial court, handling both civil and criminal cases.

Early in her time on the bench, Weilheimer was assigned to the Civil Division, handling both civil and family/custody matters. See, e.g., Mew v. J.S., No. 3279 EDA 2015 (Pa. Sup. Aug. 24, 2016). Weilheimer also handled a number of criminal matters as well. See, e.g., Com. v. King, No. 3891 EDA 2016 (Pa. Sup. June 27, 2018).

Among Weilheimer’s notable decisions, she granted judgment on the pleadings dismissing a lawsuit alleging that the Reilly foam corporation intentionally altered manufacturing equipment at the expense of worker safety. See Phansackdy v. Reilly Foam Corp., No. 2713 EDA 2018 (Pa. Sup. May 20, 2019).

Weilheimer’s decisions appealed to the Pennsylvania Superior Court have generally been affirmed. See, e.g., Polis v. Polis, No. 1976 EDA 2015 (Pa. Sup. Oct. 7, 2016) (praising the “well-reasoned opinions of the Honorable Gail Weilheimer”). See also Commonwealth v. Kent, No. 2480 EDA 2016 (Pa. Sup. Sept. 6, 2017) (noting that the “trial court opinion comprehensively discusses and properly disposes of the question presented.”).

Political Activity

Before she was elected to the bench, Weilheimer was a frequent political donor, giving more than $40,000 in 2013, for example, to the Pennsylvania Democratic party.

Overall Assessment

Given the increasingly tightening window for Senate confirmation, the Biden Administration is increasingly leaning into conventional candidates for the federal bench, hoping that their uncontroversial backgrounds make for smoother confirmations. Weilheimer fits into that trend, and, assuming no fireworks through the process, looks likely to make it through.

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Julia Lipez – Nominee to the U.S. Court of Appeals for the First Circuit

The daughter of a prominent First Circuit Judge, Maine Superior Court Judge Julia Lipez is poised to take the seat that her father once held.

Background

The daughter of First Circuit Judge Kermit Victor Lipez, Julia Lipez received a B.A. magna cum laude from Amherst College in 2002 and her J.D., with distinction from Stanford Law School in 2006. After graduating, Lipez clerked for Judge Diana Gribbon Motz on the U.S. Court of Appeals for the Fourth Circuit.

Lipez then joined the New York office of Wilmer Cutler Pickering Hale and Dorr LLP (Wilmer Hale). Lipez then shifted to the U.S. Attorney’s Office for the District of Maine, where she became Appellate Chief.

In 2022, Governor Janet Mills appointed Lipez to the Maine Superior Court, where she has served since.

History of the Seat

Lipez has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit. If confirmed, Lipez would replace Judge William Kayatta, who will take senior status upon confirmation of a successor. Kayatta himself replaced Lipez’s father.

Legal Experience

After her clerkship, Lipez joined WilmerHale as an Associate, where she primarily worked on civil litigation. Notably, during this time, Lipez was part of the legal team representing the City of New Haven in the landmark Supreme Court case of Ricci v. DeStefano (the team was led by future federal judge Victor Bolden). See Ricci v DeStefano, 557 U.S. 557 (2009). In Ricci, the Supreme Court narrowly sided with the City in approving its use of eminent domain to seize land for economic development rather than direct public use. See id.

On the criminal side, Lipez, alongside former Solicitor General Seth Waxman and future federal judge Paul Engelmayer, represented Ronald Ferguson, the CEO of the General Reinsurance Corporation, alleging fraud and other offenses arising from the collapse of AIG. See United States v. Ferguson, 676 F.3d 260 (2d Cir. 2011).

From 2011 to 2022, Lipez served as a federal prosecutor in the U.S. Attorney’s Office for the District of Maine. Notably, Lipez served as the office’s Human Trafficking Coordinator between 2014 and 2022, and the office’s Appellate chief between 2015 and 2022. During this time, Lipez argued around 15 cases before the First Circuit and tried seven jury trials.

Notably, Lipez prosecuted David Miller for transporting his minor adopted daughter across state lines for criminal sexual activity. See United States v. Miller, 911 F.3d 638 (1st Cir. 2018). Lipez also successfully argued before the First Circuit (in a panel that included former Supreme Court Justice David Souter) to defend tax evasion and fraud convictions for a doctor who illegally documented and wrote off phony medical debt. See United States v. Sabean, 885 F.3d 27 (1st Cir. 2018).

Judicial Experience

Since 2022, Lipez has served as a judge on the Maine Superior Court, which is a trial court of general jurisdiction, but also oversees administrative appeals. During her time as a judge, Lipez has presided over 14 jury and seven bench trials.

Notably, Lipez affirmed a decision by Secretary of State Shanna Bellows to bar Chris Christie from the Maine Republican Presidential Primary ballot, finding that he had not submitted sufficient valid signatures for the ballot. See Susan Cover, Judge Upholds Decision to Leave Chris Christie Off Maine Ballot, Saying He Failed to Get Enough Signatures, Spectrum News, Dec. 22, 2023, https://spectrumlocalnews.com/me/maine/politics/2023/12/22/judge-upholds-decision-to-leave-chris-christie-off-maine-ballots.

Among other notable cases, Lipez denied motions to dismiss sexual assault charges against a defendant based on speedy trial and double jeopardy after his first jury deadlocked. See State v. Michaud, KENCD-CR-19-2763 (Me. Super. Ct.).

Writings

As a law student at Stanford, Lipez authored a paper discussing California’s programs to help ex-offenders return to the workforce after prison. See Julia Lipez, A Return to the “World of Work”: An Analysis of California’s Prison Job Training Programs and Statutory Barriers to Ex-Offender Employment, Crime and Punishment Policy: Reforming California Corrections, Jan. 27, 2006, available at https://law.stanford.edu/index.php?webauth-document=child-page/266901/doc/slspublic/JLipez_05.pdf. In the paper, Lipez outlines California’s current schemes but also posits that more assertive policy changes are necessary in California to ensure that ex-offenders are able to return to the workforce. Specifically, Lipez recommends increased training for offenders in the fields of carpentry, as well as in reception and clerical positions in offices. See id. at 41-42. Lipez argues that, improving employment prospects significantly cuts down on recidivism, making everyone safer. See id. at 45.

More recently, Lipez co-authored an article discussing strategies for prosecutors to develop a successful practice with human trafficking cases. See Kate Crisham and Julia Lipez, Developing a Successful Human Trafficking Practice, 70 Dep’t of Just. J. Fed. L. & Prac. 297 (2022).

Overall Assessment

With President Biden’s announcement that he will not be seeking re-election, he nonetheless can point to judges as one of the strongest accomplishments of his first term. This impact is likely to be strengthened by the confirmation of Lipez.

Setting aside her famous parentage, Lipez brings to her nomination extensive litigation experience on both the civil and criminal side, as well as appellate experience and time spent on the bench. As such, despite her youth, Lipez can certainly be deemed qualified for the bench. If confirmed, Lipez, as the youngest judge to join the First Circuit since Stephen Breyer in 1980, would likely play a significant role in shaping First Circuit jurisprudence.

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Laura Provinzino – Nominee to the U.S. District Court for the District of Minnesota

Minnesota prosecutor Laura Provinzino has prosecuted a number of extremely serious sexual assault and human trafficking cases throughout her career, including the prosecution of “Minnesota’s Jeffrey Epstein.” She is now poised to join the federal bench.

Background

Born in 1975 in St. Cloud, Minnesota, Provinzino attended Lewis & Clark College, receiving a B.A. in 1998. She then attended Oxford University and then Yale University Law School, graduating in 2003.

After graduation, Provinzino clerked for Judge Diana Murphy on the U.S. Court of Appeals for the Eighth Circuit. She then spent two years as a Wellstone legal fellow with The Advocates for Human Rights and then joined the Minneapolis office of Robins Kaplan LLP as a litigation associate. In 2010, Provinzino left the firm to become a federal prosecutor with the U.S. Attorney’s Office for the District of Minnesota, where she currently serves.

History of the Seat

Provinzino has been nominated for a seat on the U.S. District Court for the District of Minnesota to replace Judge Wilhemina Wright, who resigned from the bench on February 15, 2024.

Legal Career

Provinzino began her legal career as a litigation associate at Robins Kaplan LLP, where she worked on civil litigation. Notably, Provinzino notably represented the parents of a disabled child who suffered significant physical abuse in a suit against the Mayo Clinic for their failure to fulfill their mandatory reporting requirements after getting news of the abuse. See Becker v. Mayo Found., 737 N.W.2d 200 (Minn. 2007) (Anderson, J.). The case concluded with a jury trial that ended in a verdict for the Mayo Clinic.

In 2010, Provinzino shifted to become a federal prosecutor with the U.S. Attorney’s Office for the District of Minnesota, where she worked in the Major Crimes Division. See, e.g., United States v. Mathis, 992 F.3d 686 (8th Cir. 2021). While with the office, Provinzino worked as the office’s coordinator of the Project Safe Childhood, which worked to prosecute the sexual exploitation of children, and then as the coordinator for human trafficking prosecutions. Notably, Provinzino prosecuted Anton Lazzaro, also known as Minnesota’s “Jeffrey Epstein.” See Kirsten Swanson, Meet the Woman Who Prosecuted ‘Minnesota’s Jeffrey Epstein’, KSTP.com, Sept. 12, 2023, https://kstp.com/kstp-news/top-news/meet-the-women-who-prosecuted-minnesotas-jeffrey-epstein/. Provinzino also argued appeals during her time with the office, successfully defending convictions for the trafficking of a juvenile male from the Dominican Republic for work in a restaurant. See United States v. Sukhtipyaroge, 1 F.4th 603 (8th Cir. 2021).

Political Activity

Provinzino has made a number of political donations throughout her career, all to Democrats.

Overall Assessment

Minnesota prosecutor Laura Provinzino has had a career that parallels that of U.S. District Judge Jeffrey Bryan, who was, like Provinzino, an associate at Robins Kaplan LLP and a federal prosecutor. Bryan was confirmed comfortably and, it appears, despite a closing window, that Provinzino should as well.

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Mary Kay Costello – Nominee to the U.S. District Court for the Eastern District of Pennsylvania

In a rush to fill as many vacancies as they can before the 2024 election, AUSA Mary Kay Costello has been nominated by the Biden Administration to fill the oldest pending vacancy in Pennsylvania.

Background

Born in 1968, Costello received a B.A. summa cum laude from Temple University in 1998 after eight years in the U.S. Air Force. Costello then received a J.D. from the Temple University Beasley School of Law in 2001. Costello then joined Saul Ewing LLP in Philadelphia. In 2004, Costello joined the Philadelphia office of Akin Gump Strauss Hauer & Feld LLP.

In 2008, Costello became an Assistant U.S. Attorney with the Eastern District of Pennsylvania, where she has served since.

History of the Seat

Costello has been nominated for a seat on the U.S. District Court for the Eastern District of Pennsylvania. This seat opened on December 31, 2021, when Judge Cynthia Rufe moved to senior status.

Legal Experience

While Costello started her career in private practice, she has spent the largest portion of her career as a federal prosecutor. Costello started her time with the office prosecuting narcotics cases. See, e.g., United States v. Yokshan, 658 F. Supp. 2d 654 (E.D. Pa. 2009). In another notable case, Costello prosecuted violations of the Lacey Act, which bars the illegal trafficking of animals. See United States v. MacInnes, 23 F. Supp. 3d 536 (E.D. Pa. 2014).

Costello’s career also included arguing appeals before the Third Circuit. For example, Costello argued in favor of an inventory search of an automobile against a Fourth Amendment challenge. See United States v. Mundy, 621 F.3d 283 (3d Cir. 2010). See also United States v. Joseph, 730 F.3d 336 (3d Cir. 2013).

Political Activity

Costello’s only political contributions consist of two contributions to Biden and two to Sen. Bob Casey.

Overall Assessment

Provided that her nomination is able to fit into the crowded Senate schedule, Democrats should be able to confirm Costello and fill this vacancy.

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The Vetting Room

Month: July 2024

Ryan Park – Nominee to the U.S. Court of Appeals for the Fourth Circuit

Judge Gail Weilheimer – Nominee to the U.S. District Court for the Eastern District of Pennsylvania

Julia Lipez – Nominee to the U.S. Court of Appeals for the First Circuit

Laura Provinzino – Nominee to the U.S. District Court for the District of Minnesota

Mary Kay Costello – Nominee to the U.S. District Court for the Eastern District of Pennsylvania