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.

432 Comments

      • Dequan's avatar

        Although I didn’t have the exact same question, I remember asking a similar hypothetical last year sometime. @Gavi answered it for me. I basically asked if a president left office before signing the commission if a confirmed judicial nominee, what happens. The short answer was a future president can still sign the commission as long as no other commission has been signed for the exact seat.

        Let’s use an example. Let’s say Biden nominated a nominee to a district court blue seat in 2024 that became vacant after January 20, 2025. If Trump won this November but the blue state senators refused to turn in their blue slips for any Trump nominee for his entire 4 years & then a Democrat won the presidency in 2028. Theoretically that Democrat could sign the commission for the Biden nominee on January 20, 2029. There would be no need for any further action from the SJC or full senate.

        Like

      • tsb1991's avatar

        In addition what was said about the commissions still being able to be signed, I believe that if a president were to resign, any nominations submitted would still be active, as at that point they’ve been sent to the Senate and they are in the Senate’s hands, where they can remain through the end of the Congress. The new president could withdraw those nominations, but a resignation shouldn’t be enough on its own to withdraw the nominations. I think some outgoing Presidents during the last two weeks of their presidency (when the new Congress convenes and any unconfirmed nominations are returned to the President) do resubmit the judicial nominations, but typically the incoming President will withdraw them on Day 1 or sometime thereafter.

        Only time I’d think the nominations may not be withdrawn, especially if they are judicial nominations, could be if the incoming President is of the same party as the outgoing President, as it could give them a headstart on nominations (especially when a President’s first judicial nominations typically don’t start to get confirmed until the summer of their first year). Of course, it’s been over 35 years since a President was succeeded by a member of their own party, so there’s not a whole lot of precedent for what I laid out.

        Liked by 1 person

      • Joe's avatar

        Lyndon Johnson and Gerald Ford both signed commission of judges who were nominated by their predecessors. Functionally I don’t believe there’s any difference as at that point as it’s the senate who is considering the nominee.

        Once the senate confirms, then their commission can be signed regardless of who the president is.

        Liked by 1 person

  2. Rick's avatar

    Sen Schumer will probably be asked by the press at least 15,000x this week when senate returns “Senator, should President Biden step aside”?. Actually, every Democratic senator is going to be hounded by the media this week when they are in the halls and it will be the same question over and over again.

    Liked by 1 person

  3. keystone's avatar

    Some possible new info regarding Josh Kindred’s sudden resignation…..

    (this is the pub that originally broke the news but not totally sure of its accuracy so take it w a grain of salt)

    It sounds like Kindred was under some sort of investigation by the Judicial Council.

    The previously mentioned rumors pertain to al alleged inappropriate relationship with a former clerk.

    It all sounds very messy.

    https://alaskalandmine.com/landmines/u-s-district-court-judge-josh-kindreds-resignation-raises-some-serious-questions/

    Liked by 1 person

      • Dequan's avatar

        WOW, after reading the article, there is no way Sullivan would agree to U.S. Attorney Lane Tucker. The article near the end mentions her by name plus the office as knowing things about the backstory here. I know it is just speculation, but as we have seen previously under Biden, we have seen a lot less be used to block nominees by Republican senators not turning in their blue slips.

        I am hoping with two vacancies now on the 3-judge court, Sullivan might work to fill at least one with the list Murkowski has after the election. Since I believe Tucker is out, that leaves three others.

        Yvonne Lamoreux – Born c. 1976

        Tamara DeLucia – Born c. 1973

        Tina Grovier – Born 1968

        I am surprised how detailed the article goes into each of the possible law clerks. It even discusses their divorces or engagements being called off & post messages from their social media.

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  4. Rick's avatar

    This Q@A was on the electoral vote.com site today. Seems relevant

    J.E. in San Jose, CA, asks: If Joe Biden resigns and Kamala Harris becomes president, who breaks the tie on a 50-50 Senate vote?

    (V) & (Z) answer: Nobody, until the Congress approves a new VP. That means that any 50-50 vote taken while the vice presidency is vacant is a failed vote, since a majority is required for legislation to be adopted or for a person’s appointment to be confirmed.

    If Harris does vacate the vice presidency, don’t expect the Republican-controlled House to approve anyone to replace her. First, because the vacancy would leave Speaker Mike Johnson (R-LA) next in line to become president. Second, because the vacancy would leave the 50-50 Senate without a tiebreaking vote, making it much harder to approve judges. For these reasons, Democrats should think long and hard about how enthusiastic they really are about the “Biden resigns” scenario.

    Liked by 1 person

    • Dequan's avatar

      Under no circumstances should Biden resign as long as he has breath in his lungs & has enough strength to hold a pen up & sign legislation & commission. If he chooses not to run (I still say he will end up being the nominee) then fine. But he is fine until January 20th regardless.

      Let me be clear… Republicans will not confirm ANYBODY for VP. Not even Jesus Christ himself could get confirmed. So there should be no talk of Biden leaving before his term finishes.

      Liked by 1 person

    • Jamie's avatar

      I agree with this if the GOP nominee was Mitt Romney, Nikki Haley, or even Marco Rubio or Ron DeSantis.

      But with Trump you have to do whatever gives you the best chance to win, and eat the conquences. And if Biden drops out and is replaced with Harris, her as the incumbent President is better for her chances to beat Trump. Biden should resign the Presidency if he drops out for Harris. Beating Trump is more important than some judges or losing a senator next term.

      Liked by 2 people

      • Dequan's avatar

        @Jaime

        All fair points if you are just taking about hypotheticals. But the situation we have now is polls are showing Harris with just as much of a chance to beat Trump as Biden. And I am not sure how her being the incumbent president would give her a better shot at winning when the election is 122 days away. If we were talking about years before the election I would agree. But no major legislation is going to be passed between now & November so we would only be losing the ability to have tie breaking votes between now & the possible election of a Republican president and/or senate. I don’t see the net positive in the scenario.

        Like

      • Jamie's avatar

        Not saying we should replace Biden, unless it is the case that the first part of that debate is whom he is now (rather than just a screw up). If the latter is true, Biden should resign the Presidency. But if Biden drops out, there cannot be a public open convention, which would make Dems look like they can’t get their act together.

        IMO incumbency would help Harris in two immediate ways, instead of being seen as a lightweight she is now the President, and it would end the talk of an open convention, which would be a disaster for Democrats. And it might give her a chance to handle a crisis well in September or October, which would help her chances as well. To me, this is worth giving her incumbency at some point before the convention. Maybe a 30 day delay in which we can get a lot of controversial nominees confirmed.

        Liked by 1 person

      • Jamie's avatar

        Yeah what I’m saying is that if his performance you’d expect in a second debate would be as bad as the first, then it’s time for him to leave. Because that probably means that he is also unable to do the job as President. If we are looking at another Woodrow Wilson scenario, Biden should resign.

        That said if Biden is going to drop out (and I’m not saying he should), it would be better electorally for Harris if he resigned outright (maybe with a 30 day delay).

        So the end result IMO should be either Biden as the nominee or Harris as President. The scenario that Biden stays on as President but Harris as the nominee is suboptimal. The worst scenario is Biden stays on as President but there is an open convention to pick the replacement nominee.

        Liked by 1 person

  5. Dequan's avatar

    Hopefully the WH waits until late tomorrow night to send the Ryan Park batch of nominees from last week over to the senate. If so, I hope he includes April Perry. If he waits until after Maldonado if confirmed, that should give Perry enough time to join this Wednesday’s SJC hearing.

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  6. Zack's avatar

    With Josh Kindred’s resignation, you knew it had to be something bad because while we have seen younger judges sometimes leave the bench to make more money in private practice, when someone leaves this early after a couple of years on the bench, it’s either because of health issues or legal/ethical ones.
    This one is clearly the latter and only time will tell how bad it will get.
    Sad to say but I don’t see this making Dan Sullivan budge, especially with the upcoming elections.
    Why back down now when there’s a chance to get two right wing judges onto a district court and ensure they get to hear more cases then a moderate/liberal judge would next year?
    Hope I’m wrong on that.

    Liked by 1 person

  7. tsb1991's avatar

    The Senate is back today, after feeling like a couple of eternities since they were last in session. Biggest question today will be if have the attendance today to confirm Maldonado. Menendez is obviously out, Durbin’s status is up in the air with that hip replacement surgery, and Manchin is very likely a no on Maldonado, if Collins voted no on cloture (Manchin was absent on the cloture vote). If every other Democrat showed up, you’d have 48 votes to confirm today, Republicans could have one absence and still get to 49 no votes with Manchin joining them.

    The other big question today is if cloture motions are sent out today to setup for Wednesday votes. Assuming they are for judges and not for anyone expected to be a party-line vote, there’s still two local DC judges and three Tax Court nominees that could be teed up.

    If Maldonado is confirmed today, it will cement IMO one of Biden’s biggest accomplishments in the judiciary (getting within one seat of flipping the court and locking down the liberal wing of the court). IMO his biggest judiciary accomplishments so far:

    -The all-Democratic 1st Circuit
    -Replacing the three Clinton appointees on the DC Circuit, two of which were 80 years old, further locking down the 7-4 majority
    -If there is a path to confirm Mangi, he’d be able to flip the 3rd Circuit, along with getting a nominee to the open Delaware seat
    -If his Tennessee 6th Circuit appointees are confirmed, he will have been able to make progress on flipping the 6th Circuit

    Liked by 2 people

    • Dequan's avatar

      The Second Gentlemen has Covid. VP Harris tested negative yesterday. Hopefully her status doesn’t change this week. I sure hope at least one Republican is out today. And I will be looking to see if cloture motions are sent as well. As for my top 5 Biden accomplishments on the judiciary, hmmmm… Off the top of my head;

      1. KBJ on the SCOTUS.
      2. 13 Black woman on the circuit courts. There were only 8 all time before Biden took office.
      3. The number of circuit court nominees I give an A or A+ to. Out of the 49 confirmed or currently pending nominees, I’ve given 25 one of those two grades. That translates into a deep bench for years to come for a Democrat president for SCOTUS vacancies.
      4. The number of Republicans appointed judges & the quality of his judges in states that require a Republican blue slip. Biden has done a stellar job with appointments to seats a Republican senator could block. I would say David Pappion & Mia Perez (Toomey was a senator when she was confirmed) are my top two so far. Even looking at the worst picks such as John Russell, he is at least old & we got a stellar Democrat pick in exchange for him so it was well worth it. In contrast, Trump put some progressives on the bench in seats that require a blue slip. One of them, Stephanie Davis was even elevated by Biden to the 6th.
      5. The number of confirmations with a 50/50 senate for two years & a 51/49 senate but Manchin & his new rule being one of the 51. That combined with how few vacancies Biden came into office with, makes how close is to breaking Trump’s 230 judges remarkable.

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  8. Rick's avatar

    Ariana Freeman’s first floor vote failed in 2022, then was confirmed on 2nd try. So worse case with Madanado is that it just takes a little longer if all GOP senators were to show up Mon, and if Manchin is Manchin. But they should have stayed and confirmed Madanado before the 2 week break, If 30 senators skipped town, well that’s on them. Schumer could have kept them in til Fri and she would already be confirmed

    Liked by 1 person

  9. Joe's avatar

    In other news, Closing arguments in the Menendez trial are set for this afternoon.

    To be honest, from a purely political perspective, it would be helpful if he was found Not Guilty. Then he could return to work at the senate full time. If he is found guilty I would expect appeal after appeal. I do not think he will resign his seat in any case.

    https://abc7ny.com/post/sen-bob-menendez-trial-closing-arguments-expected-senators/15041902/

    Liked by 1 person

  11. JJ28's avatar

    How long does Schumer have to hold open the vote once a quorum of senators has voted? If more than 51 senators have voted and Maldonado has a majority in favor of confirmation, and the vote has been open for a reasonable length of time like an hour or so, can Schumer just call it? I do not know the arcane rules of such, since I believe technically the votes are said to be 10-minute votes or some similar length of time but almost always go on for longer.

    Like

    • Dequan's avatar

      My god this is nerve wrecking. Once the 15-minute clock has ended, the chair should be able to end the vote at any time. What’s the point of the 15-minute clock if not. It’s 45-43, end the damn vote already. McConnell would have ended it at 18-16 if need be… Haaaaa

      Like

      • tsb1991's avatar

        The 15 minute clock is the minimum time allowed for a vote, I think the House has the same rule. The vote can be closed anytime after that. As far as the 18-16 vote, I think you just need a majority of the whole Senate voting for a vote to count, so a 26-25 vote in favor is just as good as a 100-0 vote, kind of like how a baseball game is official after 5 innings and will go in the books as a completed Gane if rained out or something.

        Liked by 2 people

      • Dequan's avatar

        That makes sense. At least a majority of the senate has to vote. Now if every Republican were to not show up, Democrats could ask for unanimous consent & as long as nobody objects, they can confirm the nominee (And theoretically any other nominee) without a single Republican in the chamber. That’s why I assume there is always one present when they are not in recess, therefore as long as 25 Democrats show up, they could confirm a nominee 25-1.

        Liked by 1 person

      • JJ28's avatar

        As far as I understand the rules, there must be a quorum present for a vote to count, so the scenario of 25 D and 1 R would not meet that threshold. I’ve dreamt about the one republican designated to be on the floor to stop Dem UC requests falling asleep or being distracted and a bold Dem quickly getting UC for all noms on the Executive Calendar confirmed, and that GOP senator being Rick Scott, but alas, we are not so lucky.

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  34. keystone's avatar

    Wasn’t there a vote where they had to keep it open so that one of the Senators could come down from his kid’s college graduate and break the vote? I wanna say that Senator was in NYC at the time. They could always chopper Menendez down if need be…..

    Liked by 1 person

  37. keystone's avatar

    The Sinema vote is so weird. I can understand her taking a new voting strategy, but I don’t understand choosing to unveil it on a nominee that she’s previously voted for, who really didn’t have any controversies, who has 2 blue slips, and who is the first Latina on the court (given that she is from a state that is ~1/3 Latino). Plenty of senators skipped this late day Monday vote. She could have easily done so as well.

    Liked by 2 people

    • Dequan's avatar

      And remember today was before Trump’s VP announcement. If it’s Vance or even one of the other senators I don’t think he will pick like Scott or Rubio, that’s another absence they can count on. Particularly if they have an event or rally lined up, they are scheduled to attend. Mangi is the real wild card. If Manchin & both Nevada senators are a no, it likely will come down to Sinema. If she is a no, I’m not sure they can count on any time to get him confirmed other than the week of the Republican convention, which they are on recess that week for. Hopefully they have a path forward.

      Liked by 1 person

  41. Dequan's avatar

    I’m happy to see the first Hispanic judge ascend to the 7th Circuit just like when Brad Garcia did the same on the DC Circuit. I believe the 6th & the 8th is the only two circuits never to have a Hispanic judge.

    I think the 8th & 10th is the only two circuits never to have a Black woman. I look for Biden to change all four of those short comings if he gets a second term. It’s crazy the 8th is on both of those lists. I am looking forward to seeing some vacancies on that circuit in particular since Jane Kelley is both the only woman & Democrat appointment on it.

    Liked by 1 person

    • JJ28's avatar

      The 6th could be possible in a Biden/Harris second term if Judge Moore (Clinton) finally goes senior (can’t believe she didn’t during these last four years). I would say the same about Judge Clay, but he would probably prefer most to be succeeded by a Black male rather than a Latino(a). Regardless, I’m disappointed they’re both rolling the dice with this election for president and the Senate.

      Regarding the 10th, Hartz is obviously the oldest judge on the court and from the state with two Dem senators and a larger pool of Black female candidates, but perhaps Matheson would go senior (he’s eligible), and with Romney’s likely replacement being a normal, reasonable person, maybe there would be something to work with there. Obviously blue slips aren’t needed, but having one would be good. I’m sure there are many talented candidates in the Beehive State that could fit the bill.

      As for the 8th, well, we can only hope there is a vacancy. Loken in MN is most likely. The next two oldest judges come from Missouri and Arkansas, and they’re not that old. But Jane Kelly needs some help!

      Like

    • keystone's avatar

      I think there are certain nominees that the GOP doesn’t support but most of the members actually don’t really have too much of an issue with them and are like, “eh, I really don’t care that much to show up late on a Monday or to stay late on a Thursday” – e.g. Aframe.

      I can see Ritz and Kidd falling into this category. Both have pretty normie backgrounds and there weren’t really any solid grounds for opposition. And in the case of Ritz, he’s a straight white dude.

      Assuming Lipez has Collins’ support, she should be OK.

      I think the big fights are def gonna be Campbell, Park, and Mangi.

      Liked by 2 people

      • Mike S.'s avatar

        I think Mangi will be a lame duck confirmation, but I think the others will get confirmed in due course. Nice to see lack of attendance helped get Maldonado across the finish line. I hope to see some more district court judges confirmed before the summer break. I wish they would just stay the weekend before the summer recess and bang out a bunch of district court judges…

        Liked by 1 person

  43. Zack's avatar

    Glad to see Nancy Maldonado confirmed and that Democrats didn’t give in to the BS McConnell was trying to push on them by saying he would be okay with Mary Rowland.
    Not only is she older but anyone who thinks she was going to be given a free ride was fooling themselves.
    Republicans would have accused her of being a radical LGBT activist who had no business being elevated and that would have been that.
    Thankfully we don’t have to worry about that.

    Liked by 1 person

  44. Zack's avatar

    The report on Judge Kindred just came out.
    He was sexually harassing some of his clerks and also had a relationship with one that continued when she became an AUSA.
    Yea..that’ll get you booted off the bench in a hurry.

    Liked by 2 people

  45. JJ28's avatar

    I would almost rather Chuck go through the motions on Mangi now, knowingly lose the cloture vote, then switch his vote to no so that he can call up for reconsideration the cloture vote on a moment’s notice. Currently, if he files cloture, he has to wait two days for it to ripen, and that also gives GOP senators two days’ notice of when the Mangi vote would happen. If he can call up for reconsideration a previously-lost cloture vote on a moment’s notice, then there is no advance notice and he has more flexibility on timing, and can pounce on an afternoon when Vance, Rubio, Scott, et. al., are all absent at a rally or whatever.

    I wish he had had this ready to go for the day after Juneteenth (and for Julie Su as well, a nominee that only requires 1 hour of post-cloture time per party, rather than 15 hours per party for circuit court noms).

    Chuck did this previously for Jessica Clarke and other nominees if I am not mistaken. Nancy Abudu? I can’t remember who all this tactic was used for. But Chuck should get the ball rolling now….

    Like

  46. tsb1991's avatar

    So I believe this also makes Maldonado the first judge confirmed under Biden that had opposition from a majority of the Senate, everybody else had at least 50 committed votes to confirm, not sure how often that has happened.

    -As far as today’s attendance is concerned, I believe every SJC Democrat was in attendance today, so we should be on track for the business meeting this Thursday. I’m sure a lot of fireworks will be set off around Netburn.

    -The schedule for tomorrow looks to be cloture+confirm the Nuclear Safety Board nominee, confirm+cloture Meriweather, and then cloture on Willoughby.

    -For Wednesday, I’d imagine at a minimum Willoughby is confirmed and then cloture+confirm the two Labor board nominees whose cloture was filed today. Hopefully that abortion bill gets a vote either end of day Wednesday or early Thursday, since nothing right now would need to be lined up for after Wednesday (the first two votes could be held Wednesday morning, the next two during the afternoon, and that would allow the abortion bill to be voted on last).

    -Best case scenario if we do get a cloture filing for Thursday tomorrow night is that if Republican attendance is still light and is expected to be light this week, maybe we get cloture on Ritz? I’m surprised Maldonado drew opposition from both Manchin and Sinema, I’d figure she was the easier one to confirm than Ritz. I’m hoping that with the RNC around the corner and the possibility of a Republican Senator getting thrown onto Trump’s ticket that some Republican Senators may be out.

    -Other things to look out for this week is if Park does get submitted tomorrow, otherwise it’s probably the hearing held on the 31st from her. Aside from Maldonado’s commission, we’re still awaiting Yoon and Martinez’s commissions, they were eligible last week but I figured neither would take the bench last week with the holiday week.

    Liked by 1 person

  47. Mike S.'s avatar

    If anyone is interested, below is a link to the Judicial Misconduct Complaint and Order regarding now former Judge Joshua Kindred. This guy was really channeling Judge Kozinski it seems… Kindred seems like a real wackadoo. Anyway, there is some fairly juicy stuff in there:

    chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://media.alaskapublic.org/wp-content/uploads/2024/07/22-90121-News-Release-Order-and-Certification.pdf

    Liked by 2 people

  48. Gavi's avatar

    Glad to see Maldonado confirmed.

    I am amazed that just last week folks on here were quick to say that Tillis was lying about getting a no vote commitment from 2 Dems on the Park nomination, but now with the flip of a switch, come to the realization that there are at least 5 Dems who Tillis could potentially have in his pocket. It shouldn’t have to take a no vote on Maldonado for anyone to see that.

    On Kindred

    What a sordid affair. Is Alaska’s legal community so small and insular that most of the few lawyers they have are all in bed together? Then again, isn’t/wasn’t Alaska the only state without a law school?

    Liked by 3 people

  50. star0garnet's avatar

    If we get Meriwether confirmed tomorrow, we could be entering an extended period of no vacancies on the claims court. That court was at full capacity for two days last September for the first time in a decade; it could be at full capacity till June 2034 with one short break in 2028. It was at full capacity from October 1990 to August 1995 and from December 2003 to February 2013 (minus January to October 2005).

    Liked by 1 person

    • Dequan's avatar

      If Biden gets a second term, I could see him elevating at least one of the Federal Claims Court judges. In particular Molly Silfen. Perhaps Armando Bonilla as well, although his age is making his shelf life for elevation extremely short. A handful of judges on the Federal Circuit are eligible for senior status so I think we could get a healthy dose of Delaware judges from Biden’s home state or a judge or two from this court for elevation to that court in a second Biden term.

      Liked by 1 person

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