Nancy Abudu – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Nancy Abudu, currently litigating with the Southern Poverty Law Center, has spent her career working on a number of legally and politically salient issues, leaving a long paper trail for opponents to mine.

Background

Born in Alexandria Virginia to an immigrant family from Ghana, Nancy Gbana Abudu graduated from Columbia University in 1996 and from Tulane University Law School in 1999. While in law school, Abudu participated as a student attorney with the Tulane Environmental Law Clinic. See Leslie Zganjar, Judge Orders Hearing on Possible DEQ Bias, A.P. State & Local Wire, Aug. 31, 1998.

Upon graduation, Abudu joined Skadden Arps Slate Meagher & Flom LLP as an Associate. In 2002, she became staff attorney with the Eleventh Circuit Court of Appeals. In 2005, Abudu joined the American Civil Liberties Union, eventually becoming the Legal Director of the ACLU of Florida.

In 2019, Abudu joined the Southern Poverty Law Center in Atlanta, where she works as interim director for strategic litigation.

History of the Seat

Abudu has been nominated for a Georgia based seat on the U.S. Court of Appeals for the Eleventh Circuit. This seat opened on September 30, 2021, when Judge Beverly Martin left the court.

Legal Experience

Setting aside brief stints at Skadden Arps and as a staff attorney with the Eleventh Circuit, Abudu has spent virtually her entire legal career as a civil rights attorney, at the ACLU Voting Rights Project, at the ACLU of Florida, and at the Southern Poverty Law Center.

From 2005 to 2013, Abudu worked at the ACLU Voting Rights Center. Among the prominent cases she argued there, Abudu unsuccessfully challenged felon disenfranchisement provisions in Mississippi, see Young v. Hosemann, 598 F.3d 184 (5th Cir. 2010), Arizona, see Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010), and in Tennessee. See Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010).

From 2013 to 2019, Abudu led the ACLU of Florida as Legal Director (full disclosure, the current Legal Director of the ACLU of Florida, Daniel Tilley, wrote a number of pieces for this blog). Among the matters she handled with the office, Abudu challenged residency restrictions on convicted sex offenders, arguing that they were unconstitutionally restrictive. Doe v. Miami-Dade Cnty., 846 F.3d 1180 (11th Cir. 2017). She also unsuccessfully challenged Palm Beach County’s policy of suspicionless drug testing for applicants to be substitute teachers. See Fridenberg v. Sch. Bd. of Palm Beach Cnty., 911 F.3d 10 (11th Cir. 2018).

In other suits, Abudu challenged Felon reinfranchisement provisions passed by the Florida legislature, arguing that they were discriminatory based on gender. See Jones v. Gov. of Florida, 15 F.4th 1062 (11th Cir. 2021). However, this argument was rejected by the Eleventh Circuit, who found that the suit could only succeed with evidence of intentional discrimination, and such evidence was lacking. See id. at 1065. Abudu also submitted Florida’s felon disenfranchisement policies to the United Nations Committee on Human Rights for review of human rights violations. Press Release, American Civil Liberties Union of Florida, Democracy Imprisoned (Sept. 25, 2013).

On the First Amendment side, Abudu sued Brevard County to enjoin the County’s policy of refusing to allow atheists or secular humanists to deliver county invocations. See Williamson v. Brevard Cnty., 276 F. Supp. 3d 1260 (M.D. Fla. 2017).

Since 2019, Abudu has worked for the Southern Poverty Law Center. Among the suits she handled there, Abudu joined the ACLU of Florida in a suit unsuccessfully challenging the denial and delay in hormone therapies to a transgender inmate. Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257 (11th Cir. 2020).

Writings and Speeches

In her role at the ACLU and at the SPLC, Abudu has written and spoken extensively on legal and political issues. For example, Abudu debated conservative Hans Von Spakovsky at a Federalist Society Forum in 2011. See Kent Scheidegger, Felon Voting Podcast, Crime and Consequence, Feb. 3, 2012. Abudu has also spoken out against voter ID laws. See Seth Stern, Officials Block Texas Voter ID Law; Justice Department Rules Requirement Biased, Could Disproportionately Harm Minority Voting, Charleston Daily Mail, Mar. 13, 2012. Some of her writings are summarized below.

School to Prison Pipeline

In 2017, Abudu co-authored a paper with Prof. Ron Miles criticizing the expansion of the School-to-Prison pipeline, or the over-disciplining of juvenile offenses in a manner that increases the likelihood of adult re-offending. See Nancy G. Abudu and Ron E. Miles, Challenging the Status Quo: An Integrated Approach to Dismantling the School-to-Prison Pipeline, 30 St. Thomas L. Rev. 56 (Fall 2017). In the paper, Abudu criticizes “zero-tolerance” disciplinary policies and similar mechanisms as drawing on the same fears that underlay school segregation. See id. at 57-58. For example, Abudu notes: “Oftentimes, the unstated goal behind these practices is to prove the fiction that minority children have a predisposition for bad behavior, even though decades of social science research recognizes the role of implicit bias with respect to enforcing school disciplinary policies.” Id. at 58. Abudu also criticizes legal schemes that limit liability for School Resource Officers “SROs” who injure children. Id. at 60. Instead, Abudu advocates for “restorative justice” and an increased focus on civil diversion. Id. at 64-66.

Gerrymandering

In a 2020 paper, Abudu was critical of the use of political gerrymandering to dilute minority votes, describing the practice as one that “cements historical forms of segregation, especially in the areas of housing and education.” Nancy G. Abudu, Following the Blueprint: How a New Generation of Segregationists is Advancing Racial Gerrymandering, 45 Human Rights 20 (2020). Noting the unwillingness of courts to overturn gerrymanders, Abudu argues that the solution can be to “pressure and shame elected officials” into opposing racial gerrymanders. Id. at 23.

Overall Assessment

Throughout her career, Abudu has not hesitated in taking strong positions on the law, even where a court has ultimately disagreed. While her advocacy is likely appreciated by her clients, it is also likely to draw strong opposition from those who oppose the positions she has taken. Republicans may particularly highlight Abudu’s presentation of Florida’s felon disenfranchisement policies to the UN Commission on Human Rights, arguing that the move approves international oversight over American policies. Ultimately, while Abudu is unlikely to get much bipartisan support, she also remains a favorite for confirmation.

Nina Morrison – Nominee to the U.S. District Court for the Eastern District of New York

Nina Morrison has spent the last twenty years representing inmates in seeking to re-evaluate convictions and establish evidence of innocence. She now has an opportunity to step into a different role, as a judge on the U.S. District Court for the Eastern District of New York.

Background

Born in 1970, the daughter of Alan Morrison, a Dean at the George Washington University Law School who argued twenty cases before the U.S. Supreme Court, Morrison attended Yale University, graduating in 1992. Morrison then attended New York University Law School, graduating in 1998. She then clerked for Judge Pierre Leval on the U.S. Court of Appeals for the Second Circuit.

After her clerkships, Morrison became an associate at Emery Cuti Brinckerhoff & Abady LLP where she focused on civil rights litigation. After three years there, Morrison joined the Innocence Project, where she works as executive director and senior litigation counsel.

History of the Seat

Morrison has been nominated for a seat on the U.S. District Court for the Eastern District of New York. This seat opened when Judge Dora Irizarry moved to senior status on January 26, 2020. On August 12, 2020, the White House nominated HUD attorney David Woll to fill this vacancy, but Woll never received a hearing before the Senate Judiciary Committee.

On September 1, 2021, Morrison was recommended for a nomination by Senate Majority Leader Chuck Schumer to the White House. She was nominated on December 15, 2021.

Legal Experience

While Morrison has held other positions, her primary experience over the past twenty years has been at the Innocence Project, a non-profit that advocates on behalf of individuals wrongly convicted of crimes. Morrison’s work at the Project led to the re-evaluation of hundreds of cases and the release of many. Not all the individuals released were “proven innocent”, with, in some cases, the evidence merely casting doubt on the original conviction rather than definitively establishing innocence. See, e.g., Sarah Brumfield, Maryland Man Convicted of Two Kilings in 1985 is Freed After DNA Tests Undermine Evidence, A.P., June 19, 2003. In other cases, prosecutors moved to retry defendants who had managed to overturn their original convictions. See, e.g., Bruce Lambert, Prosecutor Will Retry Man Freed by DNA in L.I. Rape-Murder, N.Y. Times, Sept. 12, 2003. We have summarized some of the important cases Morrison worked on by the state of conviction below.

Arkansas

Morrison represented Ledell Lee, an Arkansas death row inmate seeking a stay to permit DNA testing to prove his innocence. Kelly P. Kissel and Jill Bleed, Arkansas Suffers 2 Setbacks to Multiple Execution Plan, A.P., Apr. 20, 2017. Lee was ultimately executed after the U.S. Supreme Court rejected an appeal. Kelly P. Kissel and Sean Murphy, Arkansas Overcomes Legal Hurdles, Carries Out Execution, A.P., Apr. 21, 2017. Four years after the execution, new DNA evidence emerged linking a different man to the murder that Lee was executed for. See Heather Murphy, 4 Years After an Execution, a Different Man’s DNA is Found on the Murder Weapon, N.Y. Times, May 7, 2021.

Florida

Morrison got involved in reviewing and advocating for DNA testing in 80 Florida cases after the Legislature, in 2003, opened a two-year window for such testing. Mitch Stacy, Florida Attorneys Scramble to Beat Deadline for Inmate DNA Testing, A.P., Sept. 25, 2003. Among the men freed was Wilton Dedge, who spent 22 years in prison after being mistakenly identified by a rape victim. See Florida Frees Exonerated Man After 22 Years in Prison, But Leaves Him With Nothing, A.P., Sept. 12, 2004. Another was Orlando Bosquette, a prison escapee who was exonerated by the coordinated efforts of Morrison and Florida prosecutor Mark Kohl. See Jim Dwyer, Innocent Man Describes Decade of Life on the Run, N.Y. Times, May 23, 2006.

New York

Morrison represented Jeffrey Deskovic, convicted of the rape and murder of his high school classmate in 1990. See Fernanda Santos, DNA Testing Frees Man Imprisoned for Half His Life, N.Y. Times, Sept. 21, 2006. Deskovic’s request for DNA testing was initially fought by District Attorney Jeanine Pirro (later a GOP candidate for Attorney General) but was later approved by her successor Janet DiFiore (currently a judge on New York’s highest court), leading to Deskovic’s release. See id. Morrison also successfully obtained the release of Scott Fappiano, who was exonerated after an inventory of DNA samples in his rape conviction were retested. See Nicholas Confessore, After 21 Years, DNA Testing Sets Man Free in Rape Case, N.Y. Times, Oct. 7, 2006.

Notably, Morrison represented Roy Brown, who sought to overturn his conviction for the murder of social worker Sabina Kulakowski, arguing that DNA evidence suggested the real killer was her boyfriend’s brother. See Fernanda Santos, Inmate Finds Vindication in His Quest for a Killer, N.Y. Times, Dec. 21, 2006. However, Judge Peter Corning declined to order a release without additional evidence and testing. Fernanda Santos, Prosecutors Pursue DNA Case as Judge Lets Verdict Stand in ‘91 Killing, N.Y. Times, Dec. 22, 2006. However, after prosecutors subsequently exhumed the body of the accused killer and found a DNA match, Brown was exonerated and released. See Fernanda Santos, With DNA From Exhumed Body, Man Finally Wins Freedom, N.Y. Times, Jan. 24, 2007.

Texas

Morrison was an advocate for Brandon Moon, who was convicted of rape in 1988 largely based on the expert testimony of blood testing expert Glen David Adams. See Barbara Novovitch, Free After 17 Years for a Rape He Did Not Commit, N.Y. Times, Dec. 22, 2004. The case led to Moon’s exoneration and the exposure of flaws in Adams’ methodology, with the El Paso District Attorney publicly apologizing to Moon for the time he had spent in prison. See id. Morrison also represented James Waller, who was exonerated of a raping a minor child in Dallas after DNA evidence ruled him out as a suspect. See Ralph Blumenthal, A 12th Dallas Convict is Exonerated by DNA, N.Y. Times, Jan. 18, 2007.

Notably, Morrison represented Michael Morton, who was convicted of killing his wife in 1987 despite evidence showing that she had been killed by an intruder. See Will Weissert, DNA Helps Free Texas Man Convicted in Wife’s Death, A.P., Oct. 3, 2011. The case also drew attention because exculpatory evidence, including statements by Morton’s toddler son, who was home at the time of the murder, were not properly disclosed to defense counsel. See Brandi Grissom, Inmate’s Release Brings Call for New Evidence Law, N.Y. Times, Oct. 9, 2011. The withholding of evidence eventually led to the conviction of prosecutor Ken Anderson for contempt of court. See Chuck Lindell, Ken Anderson to Serve 10 Days in Jail, Austin American Statesman, Nov. 8, 2013, http://www.statesman.com/news/news/ken-anderson-to-serve-10-days-in-jail/nbmsH/.

Statements and Writings

In her role as the Executive Director of the Innocence Project, Morrison has spoken out frequently about her clients and the state of current criminal law. For example, Morrison has been critical of laws that restrict inmates to having a single year to present DNA evidence of innocence, noting that preparing cases often takes much longer. See Sharon Cohen, Deborah Hastings, For 110 Inmates Freed By DNA Tests, True Freedom Remains Elusive, A.P., May 28, 2002. Morrison has also been critical of eyewitness accounts of crimes, noting that they are frequently unreliable and result in innocent people getting locked up. See Ron Kampeas, Setbacks in Sniper Search Illustrate the Frequent Unrealiability of Eyewitnesses, A.P., Oct. 17, 2002. She has pushed for more resources for the re-integration of exonerees. See Florida Frees Exonerated Man After 22 Years in Prison, But Leaves Him With Nothing, A.P., Sept. 12, 2004. Morrison has also spoken out for greater accountability against prosecutors who fail to disclose exculpatory evidence. Nina Morrison, What Happens When Prosecutors Break the Law, N.Y. Times, June 18, 2018. See also Emily Bazelon, She was Convicted of Killing Her Mother. Prosecutors Withheld the Evidence That Would Have Freed Her, N.Y. Times, Aug.1, 2017; Tom Hays, Report Blames Prosecutor Missteps in Botched NYC Convictions, N.Y. Times, July 9, 2020.

In an interview describing the Deskovic case, Morrison noted that she joined the Innocence Project because she wanted to fight for “people who didn’t have a voice or an advocate” and because she wanted to have a greater impact than merely securing settlements in favor of civil rights plaintiffs. See Adam Nichols, DNA Key to Unlock a Cell: Attorney’s “Long Shot” Triumph to Clear Man, Daily News, Sept. 24, 2006.

In other writings, Morrison has praised state courts that have drawn broad constitutional protections for criminal defendants, noting that they are remedying the “constitutional amnesia” of federal courts by more closely aligning their jurisprudence with the underlying principles of the Bill of Rights. See Nina Morrison, Curing “Constitutional Amnesia”: Criminal Procedure Under State Constitutions, 73 N.Y.U. L. Rev. 880 (June 1998).

Political Activity

Morrison has been a frequent donor to Democratic candidates for office, giving to the presidential campaigns of John Kerry, Barack Obama, Hillary Clinton, and Joe Biden. Morrison has also donated to gubernatorial candidates Andrew Gillum and Stacey Abrams.

Overall Assessment

Having spent two decades working intimately in the trenches of criminal law and procedure, Morrison will join the bench with no learning curve on those issues. While she has less experience with civil litigation, Morrison will have an opportunity to convince senators that her background reflects the intellect and the ability to get up to speed on those issues.

Given her success in overturning convictions and her outspoken-ness on issues of criminal law, many senators are likely to argue that Morrison would be an “activist” on the bench. However, Morrison and her defenders can always argue that ensuring that the innocent are not punished for someone else’s crime is an issue that everyone can get behind.

Hector Gonzalez – Nominee to the U.S. District Court for the Eastern District of New York

Hector Gonzalez is a well-experienced litigator who, despite his nomination to the federal bench by Trump last year, has strong Democratic party ties.  While Gonzalez was not confirmed in 2020, he stands favored to take the bench next year.

Background

The 58-year-old Gonzalez got his B.S. from Manhattan College in 1985 and then attended the University of Pennsylvania Law School, graduating in 1988.[1] 

After graduation, Gonzalez started as an associate at Rogers & Wells and then joined the Manhattan District Attorney’s Office as an Assistant District Attorney in 1990.  Gonzalez then shifted over to federal prosecution in 1994, working his way to Chief of the Narcotics Unit at the U.S. Attorney’s Office of the Southern District of New York.[2] 

In 1999, Gonzalez became a Partner at Mayer Brown and moved to Dechert LLP in 2011, where he currently works and chairs the Global Litigation Practice.[3] 

In 2014, Gonzalez was recommended for a seat on the New York Court of Appeals (which ,despite its name, is New York’s highest court), but Judge Eugene Fahey was appointed instead.[4]

History of the Seat

Gonzalez has been nominated for a seat on the U.S. District Court for the Eastern District of New York to the seat vacated by Judge Brian Cogan on June 12, 2020.  Gonzalez was previously nominated for this seat late in the Trump Administration but was never confirmed.

Legal Career

While Gonzalez started his career as a firm associate, his first major position was as an Assistant U.S. Attorney for the Southern District of New York.  In the U.S. Attorney’s Office, Gonzalez rose to be Chief of the Narcotics Unit, practicing both at the trial level and the Second Circuit.  In 1999, Gonzalez moved to Mayer Brown Rowe & Maw LLP.  At Mayer Brown, Gonzalez notably was one of the lead attorneys represented telecommunications companies in the landmark Bell Atlantic v. Twombly case, which tightened pleading requirements for plaintiffs in the federal government.[5]

Since 2011, Gonzalez has been a Partner with Dechert LLP.  While at the firm, Gonzalez represented the Takata Corporation in investigations of airbag inflator ruptures.[6]  He also represented the Bank of New York Mellon in a series of investigations and litigation.[7]

Political Activity

Gonzalez’s political history is strongly Democratic.  Over the course of his career, Gonzalez has given to President Obama, Hillary Clinton, Sen. Kirsten Gillibrand, a number of New York house members, and Montana Governor Steve Bullock.[8]

Civilian Complaint Review Board

In 2002, Gonzalez was named by New York City Mayor Michael Bloomberg to be Chairman of the Civilian Complaint Review Board, an independent agency that investigates police misconduct.[9]  Gonzalez’s tenure almost immediately was bogged in controversy when a whistleblower claimed that the agency ignored racial discrimination and was biased towards police.[10]  As Chairman, Gonzalez pushed back against strip searching practices in the NYPD, recommending new training on the issue.[11]  Additionally, Gonzalez led the Board as it charged a deputy chief with misconduct for ordering the arrest of a protester at the 2004 Republican National Convention.[12]  The action, and related statements, drew sharp criticism from NYPD Commissioner Raymond Kelly, who argued that the Department had been careful in its policing.[13]  He also, paradoxically, was criticized by other observers for not doing enough to reign in the Police Department.[14]

Overall Assessment

Gonzalez’s record overall is fairly liberal, and his renomination by the Biden Administration is a recognition of that fact.  While Gonzalez is likely to draw strong opposition from Republicans due to his record on policing in particular, Gonzalez looks likely to be confirmed the second time around.


[1] Hector Gonzalez, Profile, Dechert.com, available at https://www.dechert.com/people/g/hector-gonzalez.pdf (last visited Aug. 21, 2020).

[2] See Peter Lattman, Lead Rajaratnam Prosecutor to Join Dechert, N.Y. Times Blogs, Jan. 13, 2012.

[3] Denise Champagne, COA Nominees Forwarded to Governor, Daily Record of Rochester, Dec. 2, 2014.

[4] See id.

[5] See Twombly v. Bell Atl. Corp., 425 F.3d 99 (2d Cir. 2004).

[6] See Gonzalez, supra n. 1.

[7] See id. 

[9] Diane Cardwell, Bloomberg Fills Gaps, Naming Four to Posts In His Administration, N.Y. Times, Apr. 5, 2002.

[10] Kevin Flynn, Civilian Board on Police Misconduct Defends Itself on Claim That It is Soft, N.Y. Times, Sept. 25, 2002.

[11] William Rashbaum, Police Complaint Board Finds Some Strip Searches Improper, N.Y. Times, May 13, 2004.

[12] Jim Dwyer, Charges, But No Penalty, for a Chief’s Role in a Convention Arrest – Correction Appended, N.Y. Times, Mar. 9, 2006.

[13]See Bradley Hope, Complaints Spike But Police Punish Fewer Officers, N.Y. Sun, June 30, 2006.

[14] See CCRB: Dead Board Walking, NYPD Confidential, Sept. 18, 2006, http://nypdconfidential.com/print/2006p/060918p.html. 

Judge William Pocan – Nominee to the U.S. District Court for the Eastern District of Wisconsin

Wisconsin has been home to some pitched federal judicial confirmation battles during both the Obama and Trump Administrations, as the state’s politically divided senate duo have alternately cooperated and clashed on nominees. As such, it’ll be interesting to see which side of that pattern Milwaukee Circuit Court Judge William Pocan will follow.

Background

William S. Pocan received his B.A. from the University of Wisconsin-Parkside in 1981 and his J.D. from the University of Wisconsin Law School in 1984. After a year as an associate at Brookhouse & Brookhouse in Kenosha, Pocan joined Jastroch & LaBarge, where he stayed until 2006.

In 2006, Governor Jim Doyle appointed Pocan to the Milwaukee County Circuit Court, where Pocan has served ever since.

In 2014, Pocan was one of three candidates recommended to President Barack Obama to replace Judge Charles Clevert on the U.S. District Court for the Eastern District of Wisconsin. Gayle Worland, Three Nominees for Eastern District Judgeship Named, Wisconsin State Journal, Feb. 15, 2014, https://madison.com/wsj/news/local/crime_and_courts/three-nominees-for-eastern-district-court-judgeship-named/article_ff3e8bc3-9cbf-55c0-b516-58df781cd045.html. President Obama nominated U.S. Bankruptcy Judge Pamela Pepper, who was confirmed and currently serves on the bench.

History of the Seat

Pocan has been nominated to the U.S. District Court for the Eastern District of Wisconsin, to a seat vacated on December 31, 2019, by Judge William Griesbach. In June 2021, Pocan was one of four candidates recommended by the White House for the vacancy by Wisconsin senators Ron Johnson and Tammy Baldwin, a Republican and a Democrat, respectively. See Craig Gilbert, Baldwin and Johnson Bring Forward Four Candidates to Fill Federal Judgeship in Green Bay, Milwaukee Journal Sentinel, June 22, 2021, https://www.jsonline.com/story/news/politics/2021/06/22/four-candidates-named-fill-federal-judgeship-green-bay/5312798001/. Pocan was nominated on December 15, 2021.

Political Activity

Pocan has been active in making political donations to Wisconsin candidates, largely giving to Democrats including Supreme Court candidates Shirley Abrahamson, Ann Walsh Bradley, and Louis Butler.

Legal Experience

Excluding a year at Brookhouse & Brookhouse, Pocan has spent his entire pre-bench career at the firm of Jastroch & LaBarge, where he focused primarily on plaintiff’s side litigation. Pocan was particularly notable in “Lemon Law” litigation involving cars in poor condition that were sold to consumers. See, e.g., Eric Freedman, Ford Loses Lemon Law Appeal, Automotive News, Mar. 5, 2001. Pocan also represented Adele Garcia, who filed a “Lemon Law” suit after the transmission on her Mazda left her stranded in Montana. See Anita Weier, DOT, Consumers Tell Panel: Don’t Weaken State Lemon Law, Capital Times, Feb. 20, 2004.

Jurisprudence

Since his appointment in 2006, Pocan has served on the Milwaukee County Circuit Court, where he has presided over juvenile, civil, and criminal cases. Among the notable matters he presided over, Pocan awarded a $3.2 million judgment to a man burned in an apartment fire started by a co-tenant, after a jury found the landlord and insurer liable. See Bruce Vielmetti, Tenant Burned in Apartment Fire Wins $3.2 Million Award, Proof and Hearsay, Oct. 12, 2012.

Notably, Pocan rejected a settlement agreement between dairy groups and the Wisconsin Department of Natural Resources, finding that the ruling improperly limited environmental protection authority and powers held by the Department. See Steven Verburg, Judge Denies DNR on Dairies: He Rules Agency Can’t Change Laws to Placate Big Farms, Water Pollution, Wisconsin State Journal, Jan. 16, 2019.

Among other notable rulings, Pocan ruled that Stuart Yates, a convicted sex offender, could have limited visitation with his severely ill 9 year old son, overruling a hospital restriction on such visits. See Ivan Moreno, Milwaukee Sex Offender Granted Limited Visits With Sick Son, A.P., Apr. 3, 2018.

Some of Pocan’s rulings over his fifteen year long judicial career have been reversed by higher courts. For example, the Wisconsin Court of Appeals reversed Pocan’s ruling denying David Turnpaugh compensation for wrongful conviction for solicitation. See Bruce Vielmetti, Appeals Court Says State Owes Man Wrongly Convicted of Soliciting Prostitute, Proof and Hearsay, May 22, 2012.

Overall Assessment

A couple of points that have yet to be mentioned in this article: Pocan would be the first openly gay judge on the Wisconsin federal bench; he is also the brother of U.S. Rep. Mark Pocan, a political lineage that does not appear to have caused him active Republican opposition. Overall, Pocan’s nomination will live and die based on Sen. Ron Johnson’s blue slip. Given that the White House chose to nominate him over longtime federal defender Krista Halla Valdes, it is likely that Johnson has agreed not to blue slip Pocan, even if he doesn’t ultimately vote for him.

Andre Mathis – Nominee to the U.S. Court of Appeals for the Sixth Circuit

While the Biden Administration has moved relatively quickly to line up judicial nominees, they have generally focused on states with two Democratic senators, avoiding Republican blue slips. As such, the nomination of Andre Mathis to the Sixth Circuit, coming over the objections of Tennessee’s Republican senators, is the first Biden nominee not to have the support of his home-state senators.

Background

Born in 1980, Andre Bernard Mathis received a B.A. from the University of Memphis in 2003 and a J.D. from the Cecil D. Humphreys School of Law in 2007 before joining Glankler Brown in Memphis as an Associate. Mathis currently serves as a Partner in the Memphis office of Butler Snow.

History of the Seat

Mathis has been nominated for a Tennessee seat on the U.S. Court of Appeals for the Sixth Circuit. This seat opened in May 2021 with Judge Bernice Donald’s announcement that she would move to senior status upon confirmation of her successor. Mathis was nominated on November 17, 2021. Shortly after Mathis’ nomination, Tennessee Senators Marsha Blackburn and Bill Hagerty released a statement expressing disappointment with the White House’s level of consultation on the nomination, and Hagerty has indicated his unwillingness to return a blue slip on Mathis.

Legal Experience

Mathis has practiced law for around fourteen years, starting with his time as an associate at Glankler Brown and including his current position as partner at Butler Snow LLP. Throughout his career, Mathis has focused on commercial litigation, as well as labor and employment work, but has also maintained a significant pro bono profile, particularly in working with the Tennessee Innocence Project.

Mathis has primarily focused on commercial and employment litigation. For example, early in his career, Mathis represented a dismissed Ford employee in a discrimination lawsuit after his termination. See Longs v. Ford Motor Co., 647 F. Supp. 2d 919 (W.D. Tenn. 2009). He also defended a paper company against a tort lawsuit brought by a plaintiff who fell while making a delivery to a paper mill. Sheffield v. Int’l Paper Co., 443 F. Supp. 3d (W.D. Tenn. 2020). Judge Jon McCalla denied the defendant’s motion for summary judgment in the case, finding that there was a genuine dispute of material facts regarding the company’s maintenance of a crumbling curb. See id. at 951.

On the criminal side, Mathis represented Tremaine Wilbourn, who was charged with shooting and killing a Memphis police officer in 2015. See Adrian Sainz, Man Sentenced to 25 Years in Tennessee Officer Shooting, A.P. State & Local, July 28, 2017. Wilbourn ended up pleading guilty and receiving a 25 year sentence. See id. He also represented Robert Kimbrel, a convicted felon, in challenging his sentence under a 2255 motion (which allows a collateral attack in federal court on a sentence or conviction), which was granted by Judge Jon McCalla. Kimbrel v. Batts, 196 F. Supp. 3d 811 (W.D. Tenn. 2016).

Statements and Writings

Like a number of other judicial nominees, Mathis wrote on the law as a law student. For example, Mathis authored a comment discussing the Tennessee Supreme Court’s State v. Sawyer decision, which prevented a police officer from reading an affidavit during a custodial interrogation without a Miranda warning. See Andre Mathis, Criminal Law – State v. Sawyer: Tennessee Supreme Court Holds That a Police Officer Cannot Read an Affidavit to a Person in Custody Without Giving Miranda Warnings, 36 U. Mem. L. Rev. 1171 (Summer 2006). In the comment, Mathis praised the Tennessee Supreme Court’s conclusion that reading an affidavit of complaint can, under the circumstances of the case, be the equivalent of a “custodial interrogation” that triggers Miranda. Id. at 1183. Mathis further urged courts to “expand the scope of constitutional rights of persons in police custody” while noting that the coercive nature of police interrogations can lead innocent individuals to “concede their innocence.” Id.

In another law school note, Mathis analyzed the U.S. Supreme Court’s ruling in House v. Bell, which allowed a Tennessee death row inmate to pursue a claim of actual innocence using DNA evidence. See Andre Mathis, A Critical Analysis of Actual Innocence After House v. Bell: Has the Riddle of Actual Innocence Finally Been Solved?, 37 U. Mem. L. Rev. 813 (Summer 2007). While Mathis acknowledged that the Supreme Court reached the correct conclusion in Bell, he criticized the decision for failing to provide adequate guidance to lower courts in future claims of “actual innocence.” See id. at 837.

Overall Assessment

Going back to the revival of the blue slip under Sen. James Eastland, we have been unable to find a Democratic judicial nominee to be confirmed over the refusal of both Republican Senators to return blue slips. However, with the jettisoning of the appellate blue slip under President Trump, Mathis looks favored to be the first. The question for Democrats is whether they can keep their caucus united behind Mathis. Assuming that they hold together, Mathis will likely be confirmed.

Evelyn Padin – Nominee to the U.S. District Court for the District of New Jersey

Despite being the oldest judicial vacancy in New Jersey, and the country, the seat vacated by Judge Faith Hochberg in March 2015 sat for months without a nominee. However, on December 15, the Biden Administration finally sent the nomination of solo practitioner Evelyn Padin to fill the vacancy.

Background

Evelyn Padin received a B.A. from Rutgers University of Delaware in 1983, and a M.S.W. from Fordham University in 1985, before spending four years as a social worker. Padin then obtained a J.D. from Seton Hall University School of Law and joined the firm of Linares & Coviello in 1992, working with future federal judge Jose Linares. Padin left to start her own practice in 1995 and has maintained it ever since.

In addition, Padin has been active in the New Jersey State Bar Association, including serving as the First Latina Secretary in 2014 and later serving as President of the Association in 2019. She also served as a member of the NJ Secretary of Higher Education’s Campus Sexual Assault Commission and the NJ Puerto Rico Commission.

History of the Seat

The seat Padin has been nominated for opened on March 6, 2015, with Judge Faith Hochberg’s move to senior status. The Obama Administration nominated Julien Neals to fill this vacancy, but Neals was blocked by the then-Republican controlled Senate (Neals was subsequently renominated to a different seat by President Biden and confirmed). Due to a dispute over nominees between New Jersey Senators Robert Menendez and Cory Booker and the Trump Administration, no nominee to fill a district court vacancy in New Jersey was put forward by Trump. Padin was nominated to fill the vacancy on December 15, 2021.

Legal Experience

Padin has spent her entire career practicing in Jersey City, where she focuses on family law and personal injury matters. For example, Padin represented two women in suing the Jersey City Police Department, and the owner of a residential building, after a man with outstanding warrants broke into the building and attacked one of the women, pushing her out of a window and killing her child. See New Jersey: Jersey City Man Charged With Killing Son Also Faces Lawsuits From His Ex, Her Friend, U.S. Official News, Apr. 28, 2015.

Additionally, as President of the New Jersey State Bar Association, Padin frequently participated as amicus in cases before the Supreme Court of New Jersey. See, e.g., S.C. v. New Jersey Dep’t of Children & Families, 231 A.3d 576 (N.J. 2020); Nieves v. Adolf, 230 A.3d 227 (N.J. 2020); Estate of Van Riper v. Director, Div. of Taxation, 226 A.3d 55 (N.J. 2020); Balducci v. Cige, 223 A.3d 1229 (N.J. 2020); Meisels v. Fox Rothschild LLP, 222 A.3d 649 (N.J. 2020). Notably, the Bar Association, as amicus, argued that the Fifth Amendment protected against the compelled disclosure of passcodes to cellphones seized by law, a position rejected by a 4-3 majority of the New Jersey Supreme Court. State v. Andrews, 234 A.3d 1254 (N.J. 2020).

In other matters, Padin received an admonishment from the Supreme Court of New Jersey’s Review Board on March 6, 2001 (the subject of the admonishment is unclear as the Board’s records only go back five years), which was vacated and dismissed by the New Jersey Supreme Court, which ruled that there was not clear and convincing evidence supporting the admonishment. See In re Padin, 791 A.2d 196 (N.J. 2002).

Political Activity

Padin has a few political contributions to her name, all to Democrats, including Menendez and Booker.

Overall Assessment

From an Administration pushing to draw nominees from unusual backgrounds, Padin, a sixty-year-old litigator active in the state bar, makes for a relatively safe choice. The White House can nonetheless point to her background as a social worker in arguing that Padin will bring a unique perspective to the federal bench.

Georgette Castner – Nominee to the U.S. District Court for the District of New Jersey

A year into inheriting six vacancies on the New Jersey district court from the Trump Administration, President Biden is on the verge of filling all of them. He has now nominated Georgette Castner, who has been active in the legal and legislative battles over cannabis regulation in New Jersey.

Background

Born Georgette Fries in Philadelphia in 1979, Castner received a B.S. from the College of New Jersey in 2002 and then spent a year as Chief of Staff to Assemblyman Reed Guiscora, before getting a J.D. with honors from Rutgers University School of Law in 2006. Castner then clerked for Judge Joseph Lisa on the Superior Court of New Jersey, Appellate Division.

In 2007, Castner joined Montgomery, McCracken, Walker & Rhoads, LLP, becoming a Partner in 2015. She currently serves as an equity partner.

History of the Seat

The seat Castner has been nominated for opened on May 16, 2019, with Judge Jose Linares’ move to senior status. Due to a dispute over nominees between New Jersey Senators Robert Menendez and Cory Booker and the Trump Administration, no nominee to fill a district court vacancy in New Jersey was put forward by Trump. Castner was nominated to fill the vacancy on November 3, 2021.

Legal Experience

Castner has spent her entire career post-clerkship at Montgomery, McCracken, Walker & Rhoads, LLP in Cherry Hill, where she worked primarily in civil litigation and white collar criminal matters. Among her notable matters, Castner represented Microsoft in a breach of contract action in New Jersey federal court. See Bitro Group Inc. et al. v. Microsoft Corp. et al., No. 2:20-cv-17714 (D.N.J.). Castner also represented Praxair, Inc. in defending a products liability action over allegedly defective oxygen cylinders. See Lawson et al. v. Praxair Inc., et al., No 3:16-cv-02435 (D.N.J.).

Additionally, Castner is also a co-chair in the firm’s Cannabis Law Practice Group and has liaised with the legislature on cannabis laws and regulations. In this role, Castner advises industry participants, as well as regulators on the changing legal landscape on cannabis. See, e.g., Georgette Castner, William K. Kennedy, Dr. Ronald Tuma, Medical Marijuana and the Non-Profit Workplace, available at http://39lm5827fzpu40ze7s2y2ses-wpengine.netdna-ssl.com/wp-content/uploads/2019/11/5055922_1.pdf.

Political Activity

A politically active Democrat, Castner has several political contributions to her name, all to Democrats, including Representatives Andy Kim, Bonnie Watson Coleman, and Josh Gottheimer.

Overall Assessment

As a young, politically active nominee, Castner is likely to draw some opposition in the Senate. She may also draw questions regarding her work on cannabis law, particularly as, despite the growing consensus towards limited legalization, many still support the criminalization of marijuana.

Judicial Nominations 2021 – Year in Review

The first year of the Biden Administration has drawn to a close.  As a former Senate Judiciary Committee Chair, President Biden could be said to have been particularly attuned to the importance of judicial nominations, and this bears out in the numbers.  This Administration has outpaced other recent Administrations in both nominations and confirmations (all numbers are drawn from the Federal Judicial Center).

Nominations

In the first year of his presidency, Biden submitted 73 nominees to Article III courts, more than any other modern president.  Comparatively, President Trump submitted 69 judicial nominations in his first year, President Obama submitted 34, President George W. Bush submitted 61, President Clinton submitted 47, President George H.W. Bush submitted 23, and President Reagan submitted 44.  Biden has particularly outpaced other Presidents on District Court nominees, having submitted 55, more than any other President.

Comparatively, the 18 appellate nominees submitted by Biden are slightly lower than both Trump (19) and W. Bush (25).  However, this can be explained by the number of vacancies each of the prior presidents inherited.  President W. Bush inherited 26 appellate vacancies, while President Trump inherited 17.  In comparison, President Biden inherited only two vacancies, making his pace even more impressive.

Confirmations

In 2021, the Senate confirmed 40 Article III judges: 11 judges to the U.S. Court of Appeals; and 29 judges to the U.S. District Court.  This outpaces every President since Reagan who saw 41 judges confirmed (one Supreme Court, 8 appellate, and 32 district).  In terms of appellate confirmations, Biden’s 11 falls short only of Trump’s 12.

Furthermore, Biden saw confirmation of 55% of judicial nominees submitted in his first year.  This marks the first significant uptick in first year confirmation percentage in modern history, as this has been dropping since Reagan.  To compare: please see the percentages of other Presidents below:

Percentage

Percentage of Nominees Confirmed in 1st Year of Presidency

Withdrawals

Additionally, President Biden has, despite having to navigate a 50-50 Senate, not seen a single judicial nominee defeated or blocked yet.  In comparison, the Trump Administration had lost three nominees in their first year: Jeff Mateer; Matthew Petersen; and Brett Talley.  This record is largely due to the caucus willing to stick together on judicial nominees.  Not a single Biden judge has attracted any Democratic opposition.

President Biden’s success on nominations is despite the nominees having drawn more GOP opposition than the nominees of any previous President.  Out of the 11 appellate nominees confirmed, only one attracted more than four votes from across the aisle (Tiffany Cunningham) and four attracted no minority votes at all (Eunice Lee, Myrna Perez, Lucy Koh, and Jennifer Sung).  In comparison, despite drawing more opposition than any prior president, President Trump had more than four votes across the aisle for three nominees (Kevin Newsom, Ralph Erickson, and Joan Larsen).

Diversity

The Biden Administration has prioritized choosing women and racial/ethnic minorities for court seats, seeking to do so to offset the lack of diversity in the nominees of previous administrations.  They have also sought out nominees from backgrounds that are traditionally less likely to become judges, including public defenders, and civil rights attorneys.  Both focuses are reflected in the nominees put forward.

So far, Biden has nominated thirteen women to the court of appeals, and a whopping forty-one women on the district level, making 74% of his judicial nominations women.  In comparison, 23% of Trump’s judicial nominees in his first year were women, 38% of Obama’s judicial nominees from his first year were women, as were 25% of George W. Bush’s, 37.5% of Clinton’s, 17% of George H.W. Bush’s, & 5% of Reagan’s.

Biden’s confirmations has surged the number of women on the U.S. Court of Appeals from 59 to 64, moving the court of appeals from 33.3% female to 36.6% female.

Furthermore, approximately three out of four Biden nominees are lawyers of color, compared to less than 10% of President Trump’s first year nominees.

Age

Biden’s judicial nominees have been compared to those of President Trump in terms of their youth, but, as noted earlier, President Trump’s nominees, at least in his first year, were not significantly younger than those of previous presidents, with an average age of 49.5 for appellate nominees and 52.5 for district court nominees.  So far, President Biden’s appellate nominees have an average age of 48.7, while his district court nominees have an average age of 49.8, making them slightly younger than those of previous presidents, but not significantly so.

Overall Assessment

Looking at the empirical evidence, it is clear the Biden Administration has moved quickly on nominations, submitting more judges to the senate than any other recent president.  They have also prioritized confirmations, moving judges through the process faster than prior presidents.  Nonetheless, this success must come with the caveat that Biden is the first President since Carter to have a Senate controlled by his party by the end of his first year, while also avoiding a Supreme Court confirmation.  Overall, while gaps remain, the Biden Administration’s success on judges reinforces the significance of the tenuous 50-seat majority that Senate Democrats hold, and the significant influence of each senator in maintaining that majority.

Judge Ruth Bermudez Montenegro – Nominee to the U.S. District Court for the Southern District of California

Shortly after the confirmation of U.S. Magistrate Judge Linda Lopez to be a U.S. District Court Judge, her colleague, Judge Ruth Bermudez Montenegro, looks poised to take the same step.

Background

A native Southern Californian, Montenegro was born Ruth Parra Bermudez in Brawley, Imperial County, in 1967. After graduating summa cum laude from Clarion University of Pennsylvania in 1989, Montenegro received a J.D. from the University of California Los Angeles Law School in 1992 and started work at Horton, Knox, Carter & Foote LLP as an Associate.

After a brief stint at the Office of the County Counsel in Imperial and with the Imperial Community College District, Montenegro joined the El Centro Elementary School District as Assistant Superintendent and Counsel.

In 2012, Governor Jerry Brown appointed Montenegro to be a Superior Court Judge in Imperial County, but lost her election to maintain the position in 2012. After a stint as a Family Support Commissioner, Montenegro was elected to the bench in 2014. In 2018, Montenegro became a U.S. Magistrate Judge for the U.S. District Court for the Southern District of California, where she currently works.

History of the Seat

Montenegro has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on February 8, 2018, by Judge John Houston’s move to senior status.

On November 2, 2019, the Trump Administration nominated longtime criminal defense attorney Knut Johnson to fill this vacancy. Johnson, a Democrat recommended by Sen. Dianne Feinstein and then Sen. Kamala Harris, never received a hearing before the Senate Judiciary Committee and his nomination was unconfirmed at the end of the Trump Administration.

For her part, Montenegro applied with California selection committees in January 2021 and subsequently interviewed with both of California’s senators. She was subsequently recommended to the White House for nomination by Senator Alex Padilla in July 2021 and was nominated on November 3, 2021.

Legal Experience

Montenegro started her legal career in El Centro, primarily working in civil litigation, including on employment, labor, and healthcare matters. Since 2000, Montenegro has worked either for the Office of the County Counsel, the Imperial Community College District, or the El Centro Elementary School District. In each position, Montenegro has worked in an in-house capacity, focusing on legal advice, training, and compliance. However, she has also advised her employers on litigation matters as well as representing the District in administrative procedures. For example, Montenegro defended against a lawsuit by seniors seeking to participate in the graduation ceremony (they were declined due to the failure to complete mandated service hours). See Brawley Union High School District, Imperial County Superior Court.

Jurisprudence

In 2012, and from 2015 to 2018, Montenegro served as a judge on the Imperior County Superior Court. In this role, Montenegro presided over trial court matters in criminal, civil, family, and other state law matters, handling approximately 34 jury trials and 100 bench trials during her tenure. Among matters she handled here, Montenegro sentenced a prisoner to six years in prison for attacking an officer in a prison while he was attempting to restrain another inmate. See People v. Johnson, No JCF28994, 2016 WL 7030374 (Cal. Ct. App. Dec. 2, 2016).

Since 2018, Montenegro has served as a U.S. Magistrate Judge on the Southern District of California. In this role, Montenegro presides over pretrial, trial, grand jury and discovery matters. While she has not handled any jury or bench trials as a Magistrate, Montenegro did facilitate the settlement of a lawsuit alleging a pattern and practice of sexual harassment at the U.S. Postal Service. See Cano v. Brennan, No. 19-cv-239-CAB-RBM (S.D. Cal. June 2, 2021).

Overall Assessment

Coming to the bench with a largely in-house background, Montenegro would bring a unique perspective to the bench, if confirmed. As her home base of Imperial County lacks representation on a San Diego dominated bench, Montenegro could ostensibly claim to add geographic diversity to the bench as well.

Judge Trina Thompson – Nominee to the U.S. District Court for the Northern District of California

With over two decades on the Alameda County bench, Trina Thompson should be a fairly uncontroversial candidate for the bench. However, her teaching activities, as well as her background in criminal defense, may draw scrutiny.

Background

Thompson got her B.A. from U.C. Berkeley in 1983 and her J.D. from the U.C. Berkeley School of Law in 1986. After graduating, Thompson became an assistant public defender with the Alameda County Public Defender’s Office. After five years there, Thompson opened up her own criminal defense practice.

In 2000, Thompson was selected as a Juvenile Court Commissioner in Alameda County. She subsequently was elected to the Alameda County Superior Court in 2002, and has served as a judge since. Additionally, during the Obama Administration, Thompson served on the Coordinating Council on Juvenile Justice and Delinquency Prevention.

History of the Seat

Thompson has been nominated to the U.S. District Court for the Northern District of California, to a seat vacated on February 1, 2021, by Judge Phyllis Hamilton.

Legal Experience

Thompson started her legal career as an assistant public defender in the Alameda County Public Defender’s office, representing indigent defendants in juvenile and criminal proceedings. Thompson subsequently opened and managed her own criminal defense practice for nine years before her appointment as a Juvenile Court Commissioner.

Jurisprudence

Since 2002, Thompson has served as a judge on the Alameda County Superior Court. In this role, Thompson presides over trial court matters in criminal, civil, family, and other state law matters. Thompson has also served as the presiding judge of the Juvenile Court, where, among other responsibilities, she presided over adoption ceremonies. See Josh Richman, Adoption Day Changes Lives Forever, The Oakland Tribune, Nov. 20, 2010.

Among the notable matters over which Thompson has presided, she presided over a trial of two defendants charged with 36 counts of involuntary manslaughter resulting from a 2016 fire at Oakland’s Ghost Ship warehouse. Alexandra Casey, Oakland Jury Reaches Jumbled Verdict on Ghost Ship Warehouse Fire, Daily Californian: University of California – Berkeley, Sept. 5, 2019. The case ended with the acquittal of one codefendant and a guilty plea from the other.

Statements and Writings

As part of her role as a judge, Thompson has occasionally commented on legal issues in the press. See, e.g., Sayre Quevado, The Complications Clearing a Juvenile Record, The Huffington Post, July 31, 2013.

Thompson also taught an ethnic studies course “Race and the Law” at the University of California, Berkeley. The course explored the role of the law in enforcing racial and gendered power structures. See Alice Ventura, Legacy of Desegregation Should Lead to More Latinx Representation, Daily Californian: University of California – Berkeley, Feb. 8, 2018.

Overall Assessment

With more than 35 years of judicial experience, Thompson represents a more old-school nominee model than the more youthful judicial candidates favored in recent years. While it is difficult to argue with Thompson’s qualifications, conservatives may look askance at Thompson’s teaching activities, particularly as it relates to race and the law. Liberals, meanwhile, may be disappointed with Thompson’s age.