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 Embry Kidd – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

U.S. Middle District of Florida Magistrate Judge Embry Kidd has been nominated for a seat on the United States Court of Appeals for the Eleventh Circuit. The Atlanta-based Circuit is a federal appellate court that oversees the states of Alabama, Florida, and Georgia. He is also the fifth Magistrate Judge to be nominated directly to a circuit court by President Biden. There had been six all time before Biden took office.

Background

Embry Kidd earned a Bachelor of Arts from Emory University in 2005 with high honors in political science as a Robert W. Woodruff Scholar.  He then earned a Juris Doctor from Yale Law School in 2008. While at Emory University, Kidd was the Editor of the Emory Political Review, Treasurer of the Student Government Association, Treasurer of the Media Council and served as a tour guide. After graduating from law school, Kidd served as a law clerk for Judge Roger Gregory of the U.S. Court of Appeals for the Fourth Circuit from 2008 to 2009. In 2009, he worked as an Associate at Williams & Connolly in Washington, D.C. He remained there until 2014, when he left to serve as an Assistant United States Attorney for the Middle District of Florida. On July 25, 2019, Kidd assumed office as a United States Magistrate Judge for the Middle District of Florida.

History of the vacancy

On May 8, 2024, President Biden announced his intent to nominate Kidd to the seat vacated by Judge Charles R. Wilson, who will assume senior status on December 31, 2024. Like Kidd, Wilson served as a Magistrate Judge for the Middle District of Florida (from 1990-1994) and in the U.S. Attorney’s office for the Middle District of Florida (serving as U.S. Attorney from 1994 to 1999), when President Clinton nominated him. Wilson was the second African-American on the Eleventh Circuit. If Kidd, who is also African-American, is confirmed to replace him, he would serve alongside President Biden nominated judge Nancy Abudu as the only two African-Americans on the 12 judge court.

Jurisprudence

During his nearly five years on the bench as a magistrate judge, Kidd presided over numerous cases.

On March 15, 2021, Kidd ruled Kenneth Harrelson to be held without bond pending his trial in Washington D.C. Harrelson was a members of the Oath Keepers group charged in connection with the January 6 Capitol riot. Kidd ruled that while Harrelson likely wasn’t a flight risk, he should be held based on the nature of the charges, which prosecutors argued amount to a “federal crime of terrorism.”

On September 15, 2022, Kidd ordered Jose Ramon Tejeda-Guerrero remain detained pending trial. Tejeda-Guerrero was extradited from the Dominican Republic to the United States and charged in a 2012 indictment with fraudulent possession of counterfeit or unauthorized access devices and four counts of aggravated identity theft.

On September 23, 2022, Kidd ordered Brett Avery Tipton remain detained pending trial. Tipton was charged with enticing a minor to produce child sexual abuse material. According to the criminal complaint, Tipton began communicating with the child victim through various social media platforms requesting and urging the then approximately 12 years old send him numerous pictures of the victim engaging in sexually explicit conduct.

On September 14, 2023, Miami-based businessman Sergey Karpushkin, a Belarussian citizen, pleaded guilty before Judge Kidd in Orlando, Florida to engaging in a scheme to violate U.S. sanctions and commit money laundering by conducting transactions for the purchase and acquisition of metal products valued at over $139 million from companies owned by Sergey Kurchenko, a sanctioned oligarch.

Overall Assessment

While on paper, Embry Kidd’s career may seem non-controversial and a consensus candidate for a seat on a circuit court in a state with two Republican U.S. Senators, it is almost guaranteed he will not receive the unanimous support Judge Charles R. Wilson did when he was confirmed to the same seat. With less than six months until the 2024 presidential election, the senate calendar is filled with numerous recess weeks along with an increasing urgency from the minority party to keep as many judicial seats vacant as they can in case there is a change in administration or the Senate composition as a result of the election. With the previous 14 U.S. Supreme Court Justices all having been previously nominated to one of the nation’s 13 circuit courts (Justice Kagan was nominated for but not confirmed to the U.S. Court of Appeals for the District of Columbia Circuit in 1999), a nominee such as Kidd could have decades on the bench on a crucial court, particularly with him being in his early 40s.

In addition to the calendar, demographics could come into play during the confirmation process of Kidd. Two African-American men have been Justices on the nation’s highest court. While both Thurgood Marshall and Clarence Thomas had rough confirmations, you could make an argument that African American men have had an even rougher path to the second highest level of the nation’s judiciary, particularly in the previous dozen years. Since 2013, there has been a net deficit of African American men on the nation’s appellate courts, which have 179 authorized judgeships between them. A quick look at the past dozen years may show why that trend has occurred.

In 2013, President Obama nominated a trio of nominees to the widely recognized second-highest court in the nation, the U.S. Court of Appeals for the District of Columbia Circuit, including Robert L. Wilkins, who is African-American. Senate Republicans refused to confirm Wilkins or the other two nominees despite being in the minority. This was made possible by the filibuster which required 60 votes to confirm a judicial nominee in the 100 seat U.S. senate. Senate Majority Leader Harry Reid and senate Democrats voted to change senate rules to end the fillister which only required a simple majority to confirm circuit and district court nominees, leading to Wilkins’ eventual confirmation.

None of President Trump’s 54 appellate judges were African-American (male or female) so the next example to look to would be Andre Mathis. Mathis was nominated by President Biden in 2021 to the United States Court of Appeals for the Sixth Circuit. His Tennessee home state senator Marsha Blackburn bashed the nomination claiming both home state Republican senators were not adequately consulted about the nomination. Blackburn accused Mathis of having a “rap sheet” due in part to three previous speeding tickets that he didn’t pay on time. Mathis was eventually confirmed, becoming the first Democrat appointed circuit court judge to be confirmed despite not having blue slips, a piece of paper used by the Senate Judiciary Committee to solicit views of home state senators on judicial nominees.

In 2022, President Biden nominated Jabari Wamble to the United States Court of Appeals for the Tenth Circuit. No action was taken on his nomination and it was returned to the President under Rule XXXI, Paragraph 6 of the United States Senate at the start of the new year. In February 2023, Wamble was nominated again but this time to a lower court, the United States District Court for the District of Kansas. His nomination to that court was ultimately withdrawn in May 2023 with no public explanation.

With Embry Kidd being the fourth African-American man to be nominated to a United States circuit court in the past 12 years, he has the opportunity to reverse the near historically difficult paths the previous three mentioned nominees all faced on the road to confirmation. If he can, he could possibly be on any Democrat President’s list of potential candidates for future U.S. Supreme Court vacancies for decades.

References

https://www.kansascity.com/news/politics-government/article275716501.html

https://www.whitehouse.gov/briefing-room/presidential-actions/2024/05/08/president-biden-names-forty-ninth-round-of-judicial-nominees/

https://www.ajc.com/news/atlanta-news/biden-taps-florida-judge-for-atlanta-based-federal-appeals-court/WMR5WINX6FCW3JT7NVXZ3M3PF4/

https://woodruffscholars.emory.edu/about/advisory-bios/kidd-embry.html

https://www.flmd.uscourts.gov/sites/flmd/files/documents/mdfl-8-19-mc-1-t-23-appointment-of-embry-kidd.pdf

https://cbc.house.gov/news/documentsingle.aspx?DocumentID=2511

https://www.tampabay.com/opinion/2021/02/15/this-black-history-month-remember-not-just-the-giants-of-our-courts-but-also-our-courts-history-column/

https://www.reuters.com/legal/government/11th-circuits-wilson-take-senior-status-creating-vacancy-2024-01-23/

https://www.justice.gov/usao-mdfl/pr/fugitive-extradited-dominican-republic-face-fraud-and-aggravated-identity-theft-charges

https://www.justice.gov/usao-mdfl/pr/security-guard-arrested-enticing-13-year-old-repeatedly-produce-sexually-explicit

https://www.justice.gov/usao-mdfl/pr/miami-based-businessman-pleads-guilty-conspiracy-violate-russia-ukraine-sanctions-and

https://www.floridatoday.com/story/news/2021/03/15/federal-judge-denies-bond-titusville-man-charged-over-capitol-riot-oath-keepers/4700778001/

https://www.youtube.com/watch?v=7WKb7M5EJ8E

https://www.reuters.com/legal/government/us-senate-confirms-biden-appellate-judge-pick-opposed-by-home-state-senators-2022-09-08/

https://news.bloomberglaw.com/us-law-week/us-district-court-nominee-wamble-withdraws-from-consideration

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Amir Ali – Nominee to the U.S. District Court for the District of Columbia

The Biden administration has tapped 39-year-old civil rights litigator Amir H. Ali for a lifetime appointment to the federal bench on the U.S. District Court for the District of Columbia. Ali is the fifth Muslim American nominated as an Article III judge by President Biden. Prior to the start of the Biden administration, there had never been a Muslim Article III judge in the history of the country.

Background

Amir Ali immigrated to the United States of America, eventually becoming a naturalized citizen. He received a B.S.E. in Software Engineering from the University of Waterloo in Ontario, Canada in 2008 and his J.D., magna cum laude, from Harvard Law School in 2011.

After graduating, Ali served as a law clerk for Judge Raymond C. Fisher on the U.S. Court of Appeals for the Ninth Circuit from 2011 to 2012 and Justice Marshall Rothstein on the Supreme Court of Canada from 2012 to 2013. Ali then joined Jenner & Block LLP in Washington, D.C. as an associate from 2013 to 2017. In 2018, he became Director of the Criminal Justice Appellate Clinic at Harvard Law School. Since 2021, he has been the President and Executive Director of the MacArthur Justice Center, overseeing the organization’s trial and appellate litigation. He replaced Locke Bowman, who served as Executive Director for almost 30 years.

Ali teaches at Harvard Law School, co-directing the law school’s Criminal Justice Appellate Clinic. He is a founding Board Member and Co-Chair of the nonprofit organization The Appellate Project.

History of the Seat

Ali has been nominated to replace Beryl Howell, who assumed senior status on February 1, 2024. Howell recently stepped down as chief judge of the court on March 16, 2023.

Legal Experience

Ali is a veteran litigator who has argued civil rights, racial justice and criminal defense cases at all levels in federal court. Ali has argued several major civil rights cases before the U.S. Supreme Court. In Welch v. United States (2016), Ali argued on behalf of Gregory Welch, who pleaded guilty to one count of being a felon in possession of a firearm in 2010 and had previously been convicted of three other felonies. The Armed Career Criminal Act enhanced the maximum sentence for a convicted felon from 10 years to a minimum of 15 years and a maximum of life imprisonment if the felon had three or more prior convictions for drug or violent felonies. Welch was subsequently sentenced to 15 years in prison. In the 2015 case Johnson v. United States, the United States Supreme Court ruled the Residual Clause of the Armed Career Criminal Act was unconstitutionally vague and a violation of due process. Ali represented Welch who filed a petition for certiorari resulting in a 7–1 decision the U.S. Supreme Court ruled that Johnson v. United States announced a substantive rule change and was thus retroactive with Justice Thomas being the lone dissenter.

In 2017, Ali filed a brief in Hawaii v. Trump challenging President Trump’s “Muslim ban” executive order. The brief asked for declaratory judgment and an injunction halting the order. Justice Sotomayor cited Ali’s brief in her dissenting opinion.

In 2018, Ali represented Gilberto Garza, Jr. in Garza v. Idaho before the United States Supreme Court. The case centered on two plea agreements Garza signed in 2015 which required him to waive his right to appeal. Garza then informed his trial counsel he wanted to appeal post sentencing, however his counsel declined to file a notice of appeal due to the waivers Garza signed. In a 6-3 decision, the court ruled in favor of the petitioner, reversing and remanding the case on the grounds that Garza’s trial counsel rendered ineffective assistance.

In 2018, the MacArthur Justice Center, in partnership with the Promise of Justice Initiative filed a petition for certiorari on behalf of Corey Williams in the U.S. Supreme Court. In 1998, Williams, who was an intellectually disabled 16-year-old child that had an IQ of 68, was accused and convicted of first-degree murder. Prosecutors sought the death penalty and Williams spent 20 years in Louisiana prison. In response to the petition to the U.S. Supreme Court, the Caddo Parish District Attorney’s Office agreed to the immediate release of Mr. Williams.

In 2022, Ali represented Navy veteran Larry Thompson before the U.S. Supreme Court in Thompson v. Clark. Thompson’s sister-in-law called 911 to his Brooklyn, New York apartment, alleging he was sexually abusing his one-week-old child. Thompson refused to let police inside of his apartment without a search warrant. The four police officers dispatched to the apartment forced their way in, restrain Thompson who resisted and took him into custody for two days charging him with resisting arrest. After an investigation by law enforcement revealed no signs of child abuse, all charges were dismissed. Thompson filed suit against the four officers alleging they violated his Fourth Amendment rights. The case was dismissed at the trial level and on appeal to the Second Circuit Court of Appeals due to existing precedent, requiring Thompson to show that he had been affirmatively found innocent of committing the crimes in question. Thompson filed a petition for a writ of certiorari and in a 6–3 opinion, the Supreme Court ruled Thompson was not required to show that he had been affirmatively exonerated of committing the alleged crime and, instead, “need only show that his prosecution ended without a conviction.”

Ali worked with now U.S. Court of Appeals for the District of Columbia Circuit judge Bradley Garcia in a case raising important issues involving access to courts for indigent incarcerated people. Garcia took the lead on the case pro bono and Ali said of him he “litigated the hell out of it,”.

Ali is currently representing the mother of Ahmaud Arbery in a civil suit against the people responsible for the murder of her son. Arbery was a 25-year-old black man murdered while jogging in a neighborhood near Brunswick, Georgia on February 23, 2020.

Political Activity

Ali has numerous political contributions to his name. His donation recipients include President Joe Biden and Democrat candidates for both the Georgia and Texas House of Representatives.

Overall Assessment

Despite Ali not reaching his 40th birthday yet, he has a vast legal career with an extensive progressive pro bono portfolio. If confirmed, he could serve on the court for decades and likely will be on any Democrat president’s short list for elevation for the foreseeable future. Significant opposition from senate Republicans should be expected through the confirmation process. Senate Democrats (And possibly Vice President Harris) have the votes to confirm Ali if they can keep their caucus together with nearly a year left in President Biden’s term.

References

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The Vetting Room

Author: Dequan

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

Judge Embry Kidd – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Amir Ali – Nominee to the U.S. District Court for the District of Columbia