Judge Marian Gaston – Nominee to the U.S. District Court for the Southern District of California

State Judge Marian Gaston, who has spent all of her pre-bench career as a public defender, has now been nominated to the federal bench in San Diego.

Background

Marian Gaston received a Bachelor of Arts from Emory University in 1993 and then a Juris Doctor from UC Berkeley School of Law in 1996.

Gaston then joined the San Diego County Public Defender’s Office. She held that position until Governor Edmund Brown appointed Gaston to the San Diego County Superior Court in 2015, where she currently serves.

History of the Seat

Gaston has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on August 1, 2021, by Judge William Hayes’ move to senior status.

Legal Experience

Before she was appointed to the state bench, Gaston spent nineteen years, her entire legal career, as a public defender.in San Diego. Among the cases she handled there, Gaston represented Jason Williams, who pleaded guilty to a hate crime for attacking a black neighbor with a flamethrower. See Escondido Man Sentenced to Prison for Hate Attack, A.P. State & Local Wire, June 28, 2000.

In other matters, Gaston represented Matthew Hedge, who was alleged with violating his release as a sexually violent prisoner. See Kelly Wheeler, Polygraph Expert: Sexually Violent Predator Lied During Routine Test, City News Service, Dec. 9, 2009. She also represented Philong Huynh, charging with sexually assaulting multiple heterosexual men in San Diego’s Gaslamp Quarter, and with killing one. See Kelly Wheeler, Prosectuor: Accused Killer Targeted Heterosexual Men, City News Service, June 1, 2011.

Jurisprudence

Since 2015, Gaston has served as a judge on the San Diego Superior Court. In this role, she presides over trial court matters in criminal, civil, family, and other state law matters. Among the cases she handled, Gaston terminated the parental relationships for juvenile M.P., finding that the father’s drug addiction and the mother’s inability to care for the minor justified termination, a decision that was upheld on appeal. See In re M.P., 2021 WL 1960088 (Cal. App. 4th May 17, 2021).

Writings

In 2000, Gaston was interviewed about her work as a public defender by Renee Harrison. Renee Harrison, Part Two: Domestic Violence: Representing Defendants in Domestic Violence Prosecutions: Interview with a Public Defender, 11 J. Contemp. Legal Issues 63 (2000). The interview focused specifically on domestic violence cases, and, during the interview, Gaston elaborated on her strategies for fighting and winning domestic violence cases. In the interview, Gaston criticizes mandatory arrest for domestic violence, stating that such laws place the burden of arrest on men. See id. (“The police always arrest men, so men are usually the ones on trial.”). Gaston also defended individuals charged with domestic violence, noting:

“Most of the men cry over what has happened. About half of our clients are in mutually abusive, pathetic relationships. Both people in the relationship are alcoholics or drug addicts, and/or emotionally undeveloped, and/or uncommunicative.” Id. i

Political Activity

Gaston has made a handful of political contributions during her time as a public defender, including one to President Obama in 2008.

Overall Assessment

With over 25 years of legal experience, Gaston certainly has the base level of qualifications to be a federal judge. She will likely draw opposition for her time in public defense and some may draw questions as well about her statements on domestic violence, although Gaston can reasonably argue that she was speaking as part of her role as an advocate.

Matthew Brookman – Nominee to the U.S. District Court for the Southern District of Indiana

Longtime magistrate judge Matthew Brookman is Biden’s first nominee to the federal district court bench in Indiana.

Background

The 54-year-old Brookman received his B.A. from DePauw University in Indiana in 1990 and a J.D. from the Washington University School of Law in 1993. He then spent a year with Brown & James in St. Louis before becoming a prosecutor with Jefferson County, Missouri.

In 1997, Brookman returned to private practice to the firm of Herzog, Crebs & McGhee. In 1999, Brookman became a federal prosecutor with the U.S. Attorney’s Office for the Western District of Missouri. In 2002, he shifted to become a federal prosecutor with the U.S. Attorney’s Office for the Southern District of Indiana.

Since 2016, Brookman has served as a U.S. Magistrate Judge for the U.S. District Court for the Southern District of Indiana.

History of the Seat

Brookman has been nominated to the U.S. District Court for the Southern District of Indiana, to a seat to be vacated by Judge Richard Young, who will take senior status upon confirmation of a successor.

Legal Experience

Brookman started his legal career in St. Louis at Brown & James but then shifted to Jefferson County, Missouri to be a prosecutor. Among the cases he handled there, Brookman prosecuted Nancy Montplaisir for stealing money from the Ambulance District. See Monte Reel, Woman Guilty of Theft; Ex-Secretary Claimed Boss Made Her Take $16800 from Ambulance District, St. Louis Post-Dispatch, Apr. 14, 1997. He also prosecuted Donald Roberts for the murder of Christopher McLafferty as part of a road rage incident. See Monte Reel, Jury Finds Man Guilty in Murder at Highway 141 Stoplight Last Year, St. Louis Post-Dispatch, Aug. 29, 1997. Roberts was sentenced to four consecutive life terms. See Robert Kelly, Affton Man Gets 4 Life Terms in Fatal Fight Alongside Road, St. Louis Post-Dispatch, Sept. 23, 1997.

Between 1997 and 1999, Brookman worked on civil cases at Herzog, Crebs & McGhee P.C. See, e.g., Dorsey v. SEKISUI America Corp., 79 F. Supp. 2d 1089 (E.D. Mo. 1999).

In 1999, Brookman became a federal prosecutor in Missouri and, in 2002, shifted to Evansville, Indiana. While in Missouri, Brookman prosecuted Rodney Hollis for possession of marijuana with intent to distribute. See United States v. Hollis, 245 F.3d 671 (8th Cir. 2001). In Indiana, Brookman prosecuted individuals connected with a crime spree conducted by Jarvis Brown that led to multiple deaths and injuries. See Hogsett Praises Assistant United States Attorney from Evansville, Targeted News Service, Feb. 1, 2011. His work on the case led to Brookman receiving a Department of Justice award. See id.

Judicial Experience

Since 2016, Brookman has served as a U.S. Magistrate Judge for the Southern District of Indiana. In this role, he presides by consent over civil matters and misdemeanors, assists district judges with discovery and settlement, and writes reports and recommendations on legal issues.

In his capacity, Brookman has ruled on a number of appeals from denial of social security benefits. On appeal, some of his rulings affirming the denial of benefits were overturned by the Seventh Circuit. In one case, a Seventh Circuit panel overruled Brookman’s affirmance in a per curiam opinion, finding that the administrative judge erred in not consulting a medical expert regarding MRI evidence. See McHenry v. Berryhill, 911 F.3d 866 (7th Cir. 2018). In another case, the Seventh Circuit agreed with the plaintiff that the administrative judge improperly made adverse credibility determinations against him. See Ray v. Berryhill, 915 F.3d 486 (7th Cir. 2019).

In another opinion, Biden appointee Candance Jackson-Akiwumi reversed Brookman’s grant of summary judgment to a Homeowner’s Association (HOA). See Watters v. Homeowners’ Ass’n, 48 F.4th 779 (7th Cir. 2022). Jackson-Akiwaumi wrote for the panel majority in reversing the dismissal of a Fair Housing and 1982 claim on behalf of an African American couple alleging racial discrimination. See id. Judge Amy St. Eve dissented, arguing that she would affirm Brookman’s ruling because there was no nexus between discrimination faced by the plaintiffs and a legally cognizable adverse employment action. See id. at 790 (St. Eve, J., dissenting).

Overall Assessment

As a well-credential juror, Brookman has a relatively uncontroversial background. Additionally, he has received favorable reviews from Sen. Todd Young. However, as long as the blue slip policy remains in effect, Brookman’s nomination turns on whether Sen. Mike Braun returns a blue slip. Given the fact that the nomination was submitted to the Senate, I expect that Brookman should be confirmed easily.

Judge Robert Kirsch – Nominee to the U.S. District Court for the District of New Jersey

A Republican nominated to the state bench by a Democratic Governor, Judge Robert Kirsch is now poised to be elevated to the federal bench by a Democratic President.

Background

Born in 1966, Robert Andrew Kirsch grew up in South Orange in New Jersey. Kirsch received a Bachelor’s Degree from Emory University in 1988 and a J.D. from Fordham University School of Law in 1991.

After graduating, Kirsch clerked on the U.S. District Court for the Southern District of Florida for Judge William Zloch and then spent four years with the U.S. Department of Justice Civil Division. In 1997, Kirsch became a federal prosecutor with the U.S. Attorney’s Office for the District of New Jersey. In 2010, Kirsch was appointed to be a state judge in New Jersey by Democratic Governor Jon Corzine at the recommendation of Republican State Senator Tom Kean. Kirsch still serves as a state judge.

History of the Seat

Kirsch, a Republican, was recommended for the federal bench in New Jersey by Senator Robert Menendez. He has been nominated to replace Judge Freda Wolfson, who will take senior status on February 1, 2023.

Legal Experience

Kirsch started his legal career as a law clerk to Judge William Zloch. He then spent four years with the Civil Division at DOJ. While there, Kirsch participated in a legal malpractice suit against a federally chartered Savings & Loan. See Resolution Trust Corp. v. Rosenthal, 160 F.R.D. 112 (N.D. Ill. 1995).

Between 1997 and 2010, Kirsch worked as a federal prosecutor in New Jersey. At the office, Kirsch primarily handled white collar cases. Notably, he prosecuted Chip Hoffecker, who was sentenced to 17 years in prison for defrauding investors. See Ted Sherman, Ex-Federal Prosecutor is Sworn in as Union County Superior Court Judge, Apr. 18, 2010, https://www.nj.com/news/2010/04/former_us_attorney_judge_sworn.html.

Outside of the white collar context, Kirsch participated in suits over the detention of individuals at Guantanamo Bay. See Gina Holland, Judge Refuses to Stop Hearings at Guantanamo Bay, Rejects Unfair Claim, A.P., Aug. 3, 2004. He also worked to prosecute the distribution of illegal steriods in New Jersey. See Michael O’Keefe, Huge Roid Raid in N.J. Basement, New York Daily News, Sept. 21, 2007.

Judicial Experience

Kirsch has served on the Superior Court in Union County since 2010. Among the cases he handled there, Kirsch presided over the juvenile adjudication of Carlton Franklin for the murder committed in 1976, when he was 15. See Kate Zernike, Man, 52, is Convicted as a Juvenile in a 1976 Murder, Creating a Legal Tangle, N.Y. Times, Dec. 22, 2012. Kirsch sentenced Franklin to ten years in prison, which was upheld on appeal. State in Interest of C.F., 132 A.3d 426 (N.J. Super. App. Div. 2016).

Overall Assessment

Kirsch has received bipartisan support throughout his legal career, and this is unlikely to change at this stage. While many progressives may be disappointed with Menendez (and Biden) choosing to appoint a Republican to this seat, it is unlikely to derail Kirsch’s confirmation.

Michael Farbiarz – Nominee to the U.S. District Court for the District of New Jersey

Port Authority General Counsel Michael Farbiarz has spent virtually his entire legal career in New York City, but has now been nominated to a seat on the federal bench in New Jersey.

Background

The 48-year-old Farbiarz received a Bachelor of Arts from Harvard University in 1995 and a J.D. from Yale Law School in 1999. He then clerked for Judge Michael Mukasey on the U.S. District Court for the Southern District of New York and for Judge Jose Cabranes on the U.S. Court of Appeals for the Second Circuit.

After his clerkships, Farbiarz spent three years with the New York office of Davis Polk & Hardwell before becoming a federal prosecutor for the U.S. Attorney’s Office for the Southern District of New York. In 2014, Farbiarz became a Senior Fellow with the New York University School of Law.

Since 2016, Farbiarz has served as general counsel for the Port Authority of New York and New Jersey.

History of the Seat

At the recommendation of Senator Cory Booker, Farbiarz has been nominated to replace Judge Noel Hillman, who took senior status on April 4, 2022.

Legal Experience

Farbiarz started his career as an associate at Davis Polk & Hardwell in New York City. While at the firm, Farbiarz was part of the legal team for Duane Reade, who was suing to recover damages from an insurer after the September 11 attacks. See Duane Reade Inc. v. St. Paul Fire & Marine Ins. Co., 279 F. Supp. 2d 235 (S.D.N.Y. 2003).

From 2004 to 2014, Farbiarz worked at the U.S. Attorney’s Office for the Southern District of New York. At the office, Farbiarz notably handled terrorism prosecutions. See, e.g., Haouari v. United States, 429 F. Supp. 2d 671 (S.D.N.Y. 2006) (concerning prosecution of participant in LAX millennium bombing plot). Farbiarz notably prosecuted Al Qaeda member Ahmed Ghailani. See, e.g., United States v. Ghailani, 751 F. Supp. 2d 508 (S.D.N.Y. 2010). Ghailani was ultimately convicted of one count of conspiracy to destroy government property but acquitted of 279 other counts. See Benjamin Weiser, U.S. Jury Acquits Former Detainee of Most Charges, N.Y. Times, Nov. 18, 2010. Farbiarz also prosecuted Tongsun Park, who was alleged to siphon money from the United Nations Oil for Food program. See Paul H.B. Shin, Saddam Gave Bizman 2.5M: Feds, New York Daily News, June 28, 2006.

Notably, Farbiarz prosecuted Somali nationals charged with piracy for their attack on the Marsk Alabama, an American vessel. See Benjamin Weiser, A Suspect in Somali Piracy Denies United States Charges, N.Y. Times, May 22, 2009. He also led the prosecutions related to a “nest” of 11 Russian spies who allegedly lived in Manhattan. See Scott Shifrel and Helen Kennedy, Russian Spy Ring Lived Among Us! Shocker Reminiscent of the Cold War as FBI Takes Down Nest of ‘Deep Cover’ Agents,New York Daily News, June 29, 2010.

Since 2016, Farbiarz has served as general counsel for the Port Authority of New York and New Jersey, which oversees the regional transportation instructure for the tristate area. In this role, Farbiarz’s name appeared in briefs in litigation involving the Port Authority, including in suits over arbitration awards involving the Port Authority Police. See Port Authority of New York and New Jersey v. Port Authority of New York and New Jersey Police Benev. Association, Inc., 209 A.3d 897 (N.J. Super. 2019).

Writings

In his time as a Fellow at NYU Law School, Farbiarz has written on terrorism and extraterritorial prosecutions. In one paper, Farbiarz advocates for more robust due process protections to apply in extraterritorial and international prosecutions. See Michael Farbiarz, Accuracy and Adjudication: The Promise of Extraterritorial Due Process, 116 Colum. L. Rev. 625 (April 2016). In another paper, Farbiarz criticizes the tendency of federal courts to apply Constitutional due process protections in international prosecutions, arguing that a better due process scheme would be to focus on “conflicts” between American legal standards and local law and to shore up those gaps. See Michael Farbiarz, Extraterritorial Criminal Jurisdiction, 114 Mich. L. Rev. 507 (Feb. 2016).

Overall Assessment

With impeccable academic credentials and a relatively uncontroversial background, Farbiarz looks likely to have a relatively comfortable confirmation. On the bench, he’s likely to be a relatively mainstream judge.

Judicial Nominations 2022 – Year in Review

As the first half of President Biden’s term draws to a close, his team can count judicial nominations (and confirmations) as an area of success as his Administration has outpaced other recent Administrations in both nominations and confirmations (all numbers are drawn from the Federal Judicial Center).  Biden also remains poised for a significant impact on the federal bench in the second half of his term.

Nominations

In the first year of his presidency, Biden submitted 73 nominees to Article III courts, more than any other modern president. By the end of this year, Biden has submitted an additional 75 nominees, for a total of 148.  This is slightly below the 158 nominations that Trump announced in his first Congress, but, given the significantly larger number of vacancies that Trump inherited, compared to Biden, the fact that the gap is so close is nonetheless impressive.

Of these 148 nominations, 1 has been to the Supreme Court, 37 to the court of appeals, and 110 to the district courts.

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.  The Senate subsequently confirmed 57 in 2022: 1 to the Supreme Court; 17 to the Court of Appeals; and 39 to the District Courts.

Furthermore, Biden saw confirmation of 65% of judicial nominees submitted in his first Congress.  This is significantly higher than the 53% that Trump saw.

Withdrawals

Furthermore, President Biden has still not seen a single judicial nominee defeated in an up-or-down vote.  While Democrats did lose a confirmation vote on Third Circuit nominee Arianna Freeman, this was due to absences, and Democrats were able to confirm her on a motion to reconsider.

However, Biden is likely to have to withdraw two judicial nominations at the end of this Congress.  Eastern District of Wisconsin nominee William Pocan has been blue-slipped by GOP Senator Ron Johnson, despite Johnson having previously signed off on him.  With Johnson narrowly re-elected and Democrats not changing the district court blue slip policy so far, it is unlikely that Pocan has a path to confirmation and the White House will likely look for a new nominee.

Northern District of New York nominee Jorge Rodriguez faces a different issue.  The judge he was nominated to replace, Judge David Hurd, has declined to take senior status, expressing opposition to Rodriguez not being a Utica-based practitioner.  Barring another vacancy opening up on the court that Rodriguez might be nominated for (Judges Glenn Suddaby and Mae D’Agostino would both be eligible for senior status next Congress if they chose to take it), it is expected that he will not be renominated.

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 one woman to the Supreme Court, twenty-seven women to the court of appeals, and seventy women on the district level, making 66% of his judicial nominations women.  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.

Overall Assessment

Perhaps the greatest praise that can be given to the Biden Administration on judicial nominations is they have done more with less than any other recent administration.  President Biden had the narrowest of Senate majorities, dependent entirely on the presence of the Vice President, and had inherited a comparatively small number of judicial vacancies.  Nonetheless, he was able to outpace President Trump and President Obama through a combination of strategy, persistence, and luck.  Biden also owes a significant debt to the Senate Democratic caucus, who held together on every single nomination vote, allowing a number of controversial nominees to be confirmed despite strong Republican opposition; and to Sen. Lindsey Graham, who backed most of the President’s judges, allowing them to bypass time-consuming discharge votes.  Additionally, on multiple occasions, Graham allowed Biden appointees to be voted out of Committee and avoid discharge even where he ended up opposing the nominee in the end.  As a result, of the 97 judges confirmed under Biden, 90 received some Republican support for confirmation, meaning that just 7% of Biden confirmations were on party-line votes.  In comparison, 9% of Trump appointees in his first Congress drew no Democratic support.  With the Democratic majority now rising to 51, senators wishing to demonstrate some independence will presumably have more wiggle room to do so without jeopardizing confirmation.  As such, one may expect to see some Democrats oppose Biden nominees, but it is unlikely that any would do so in a manner that is likely to defeat them.  As such, with 113 vacancies still open to fill, Biden has the capacity to match, if not exceed, the 234 judicial confirmations that Trump saw.

The Unexpected Opportunity – Assessing the Landscape of Judicial Vacancies

While the Georgia runoff still awaits, as of the writing of this article, Democrats have defied political history and maintained their razor-thin Senate majority past the midterm elections. With the loss of the House, Democrats are unlikely to pass transformative legislation in the next two years, freeing the Senate to prioritize nominations (where the House has no role). Court watchers will likely welcome this, as, despite historic successes with their razor-thin majority, the Biden Administration has little time to rest if it intends to fill a sizeable proportion of the 100+ lower court vacancies currently pending in the federal judiciary. Currently, there are sixteen circuit court vacancies and ninety-seven district court vacancies pending (including seats announced to be vacated but currently still full). In comparison, 56 judicial nominees are currently before the senate, twelve to circuit courts and 44 to district courts. As the Biden Administration and Senate Democrats turn to nominations and confirmations, it’s useful to look again at the current landscape.

As a reminder, the process for choosing circuit and district court nominees is fairly different. After the practice of requiring blue slips for appellate nominees was terminated during the Trump Administration, the Administration is under no obligation to secure pre-approval from home state senators before the nominee can receive a hearing. However, in practice, the Administration is still incentivized to consult with home state senators, which can slow down the nomination process, particularly in states with Republican senators.

Unlike circuit court vacancies, district court seats still require home state approval in order to be confirmed. This means that the ball is largely in the senators’ court in terms of naming nominees. This doesn’t mean that the Administration is completely absent from the process. It is still responsible for prodding senators, negotiating agreements, and choosing the right candidate. In fact, the Administration started right off the gate with an announcement that it expected recommendations for vacancies within 90 days of the announcement. This makes it all the more surprising the sheer number of district court seats that sit without nominees today.

This split is less surprising in states that only have Republican Senators, a group which includes thirty-five district court vacancies without nominees: six in Florida; five in Texas; three in Indiana and Louisiana; two each in Alabama, Missouri and Oklahoma; and one each in Alaska, Arkansas, Idaho, Kansas, Kentucky, Nebraska, North Carolina, South Carolina, South Dakota, Tennessee, Utah, and Wyoming. Many of the home state senators in these states have been fairly open about their unwillingness to work with the Administration on a nominee. However, others have been more willing to be involved, with Iowa senators, for example, recommending U.S. Magistrate Judge Stephen Locher, a young Democrat, to the bench (Locher was swiftly and unanimously confirmed). The lone district court nominee in a 2-Republican state is also the most recent, Scott Colom in Mississippi.

Similarly, in states with split delegations, the White House understandably needs to move with the support of home state Republican senators. It has had mixed luck in the states it has tried this with. Ohio Sen. Rob Portman returned blue slips for three nominees who were confirmed (one more remains pending). Similarly, the White House was able to reach a four nominee deal with Sen. Pat Toomey in Pennsylvania that included a nominee of his choice. In contrast, Sen. Ron Johnson has chosen to block a nominee that he previously signed off on.

Perhaps the most surprising in terms of vacancies without nominees are blue states or territories, where Democratic senators would presumably be incentivized to send recommendations quickly: yet, sixteen district court vacancies from blue states are nomineeless today, including four from California, three from New Jersey, two each from Connecticut, Illinois, and Michigan, and one each from Colorado, Maryland, and New York. A summary of this landscape follows:

D.C. Circuit – 1 vacancy out of 11 judgeships (one nominee pending)

The so-called “second highest court in the land”, the D.C. Circuit was the site of Biden’s first appointee when Jackson was confirmed to the court last June, a mere two months after her nomination. However, since that haste, a second vacancy languished for more than a year, taking nearly nine months after Judge David Tatel announced his departure from active status before Judge Michelle Childs was nominated, and taking Childs eight months to be confirmed. Jackson’s elevation to the Supreme Court reopened another vacancy, and the White House moved more quickly, elevating U.S. District Judge Florence Pan (confirmed in September). A fourth nominee, Brad Garcia remains pending on the Senate floor to fill the last remaining vacancy on the court, vacated by Judge Judith Ann Wilson Rogers.

The only district court that reports to the D.C. Circuit is the U.S. District Court for the District of Columbia. The 15-judgeship court has one current vacancy, from Pan’s elevation, and one future vacancy, with Judge Colleen Kollar-Kotelly taking senior status upon confirmation of a successor. Nominees are pending for both vacancies with Ana Reyes currently awaiting a floor vote and Judge Todd Edelman having received a Judiciary Committee hearing last week.

First Circuit – 2 vacancies out of 6 judgeships (one nominee pending)

The smallest court of appeals in the country was also the sole geographically-based court not to see a single Trump appointment. Biden has already named Judge Gustavo Gelpi and Public Defender Lara Montecalvo to the court. Additionally, reproductive rights attorney Julie Rikelman is pending a vote before the Senate Judiciary Committee to replace Judge Sandra Lynch. The final seat, based in New Hampshire, was vacated by Judge Jeffrey Howard nearly nine months ago, and lacks a nominee. Given that New Hampshire has two Democratic senators, the lack of a nominee is puzzling.

The district courts covered by the First Circuit have five pending judicial vacancies, all of which have nominees. The District of Massachusetts has three current vacancies and three nominees pending, two of whom already have hearings.

The District Court for the District of Puerto Rico is down two judges, with nominees to fill the seats already on the Senate floor. A final Senate vote on Judge Camille Velez-Rive is expected next week, which should leave Judge Gina Mendez-Miro as the sole pending P.R. nominee.

Second Circuit – 1 vacancy out of 13 judgeships (one nominee pending)

Having replaced five left-leaning judges on the Second Circuit, the Biden Administration has already had a significant impact on the court. However, Justice Maria Araujo Kahn, nominated to replace 81-year-old conservative Jose Cabranes, remains pending in the Senate Judiciary Committee and has a long line of nominees ahead of her to be confirmed.

Connecticut, which saw three Biden appointees hit the bench last year, is one of the worse blue states when it comes to nomineeless vacancies, with two of the eight active judgeships vacant and no nominees on the horizon.

Meanwhile, the district courts in New York are also shortstaffed, with nine vacancies among them. The hardest hit is the Eastern District of New York, which has four vacancies out of sixteen judgeships, The bright side for the White House is that eight of the nine vacancies have nominees pending. The down side is that only three of the nominees are currently on the Senate floor (with one, Anne Nardacci, expected to be confirmed next week). Two of the longer pending nominees, Southern District of New York picks Dale Ho and Jessica Clarke, are currently bottled up in Committee, pending a discharge vote. Three more await hearings.

Third Circuit – 2 vacancies out of 14 judgeships (two nominees pending)

This moderate court currently has one Biden nominee confirmed (Arianna Freeman nominated to replace Judge Theodore McKee) but Judges Thomas Ambro and Brooks Smith don’t have replacements yet although nominees are pending on the Senate floor for both seats and should, if prioritized, be confirmed easily.

Two of the three states covered by the Third Circuit have judicial vacancies. The biggest number are in Pennsylvania, which has seven vacancies, four of which have nominees, the aforementioned four nominee deal. With Democrat John Fetterman replacing Toomey, it is likely that new recommendations will be sent out for the remaining vacancies and they will likely not be confirmed in the next few months.

The District of New Jersey, vacancy-ridden when the Biden Administration came to office, is now down to three seats left to fill. However, none of the three vacancies have nominees pending even though the oldest dates back seven months. With control of the Senate solidified, it is likely that New Jersey will see new district court nominees shortly.

Fourth Circuit – 2 vacancies out of 15 judgeships (one nominee pending)

The Fourth Circuit currently has vacancies out of South Carolina and Maryland. Judge DeAndrea Benjamin, nominated to the South Carolina seat, has home state senator support and will likely be confirmed easily in the new Congress. However, the bigger surprise is that a Maryland vacancy announced last December still lacks a nominee. Maryland’s Democratic senators have a mixed record in the speed of recommendations and a district court vacancy in the state announced last year also lacks a nominee.

In other states, Virginia has two nominees pending before the Senate Judiciary Committee for a final vote. Their confirmations would fill all the remaining vacancies on the state’s district courts.

Additional vacancies exist in North Carolina and South Carolina. Both North Carolina and South Carolina have two Republican senators, so any nominee will largely depend on the White House’s negotiations.

Fifth Circuit – 2 vacancies out of 17 judgeships (one nominees pending)

The ultra-conservative Fifth Circuit became even more so when the youngest Democrat on the Fifth Circuit, Judge Gregg Costa, unexpectedly announced his resignation from the bench. Nine months after Costa’s announcement, there is still no nominee pending to replace him, although Judge Dana Douglas, nominated to replace Octogenarian liberal James Dennis, is poised for confirmation after bipartisan support in the Judiciary Committee.

On the district court level, both Louisiana and Texas have multiple district court vacancies and no hint of any nominee. Mississippi, on the other hand, despite having only one vacancy, does have a nominee: Scott Colom. While Mississippi senators have not yet announced support for Colom, they have not expressed opposition either, suggesting that Colom might be, surprisingly, on track for confirmation.

Sixth Circuit – 1 vacancies out of 16 judgeships (one nominee pending)

Of the three vacancies on the Sixth Circuit that opened in the Biden Administration, only the Ohio based seat of Judge R. Guy Cole remains open. Rachel Bloomekatz, nominated to replace Cole, is awaiting a discharge vote in the Judiciary Committee. It remains to be seen if Sen. Sherrod Brown will push for Bloomekatz to receive a final Senate vote by the end of the year.

On the district court level, each of the four states under the Sixth Circuit have vacancies pending. After the White House’s proposal to nominate conservative lawyer Chad Meredith to the Eastern District of Kentucky fell through, there remains no nominee to replace Judge Karen Caldwell, although Caldwell has reaffirmed that she will only leave the bench if a conservative is appointed to replace her.

The Eastern District of Michigan has four pending vacancies and two nominees (one on the Senate floor). Michigan’s Democratic senators have been relatively slow in naming nominees, so it’s unclear when nominees will hit the Senate for the remaining vacancies.

The Southern District of Ohio has a single vacancy, with a nominee, Jeffery Hopkins, pending a Judiciary Committee vote. With Sen. Rob Portman set to be replaced by J.D. Vance, it is possible that Democrats will prioritize Hopkins in an effort to fill the seat before Vance’s input is needed.

Finally, a vacancy is pending on the Western District of Tennessee. The White House and Tennessee Senators battled over the Sixth Circuit nomination of Andre Mathis, and while the White House ultimately won confirmation, other seats could become casualties. Nonetheless, the White House has put forward U.S. Attorney nominees with senatorial support in the state, suggesting that some common ground can be reached to fill the vacancy.

Seventh Circuit – 2 vacancies out of 11 judgeships (one nominee pending)

In addition to naming Judge Candace Jackson-Akiwumi and Judge John Lee to the Seventh Circuit, Biden has the chance to add two more judges to the court. Judge Doris Pryor, currently pending on the senate floor, is likely to be confirmed before the end of the year. However, the second vacancy, opened by Judge Michael Kanne’s death, lacks a nominee. Given the support Indiana’s Republican Senators gave to Pryor, the White House is likely to grant them deference in turn in cchoosing a nominee to replace Kanne.

On the district court level, Illinois nominees Lindsay Jenkins and Colleen Lawless are pending in the Senate Judiciary Committee. The Northern District of Illinois has two more vacancies that are likely to get nominees shortly.

Meanwhile, three vacancies are pending in Indiana without nominees. It is likely that the White House may lump these nominees into a package with the Kanne seat to allow for all the seats to be filled at once.

Wisconsin is likely a sign of frustration for the White House as Senator Ron Johnson has now blocked both a federal judge nominee and a U.S. Attorney nominee that he previously signed off on. With Johnson’s narrow re-election, it is likely that the nomination of Judge William Pocan is dead, and the White House and senators will have to renegotiate a new nominee to replace Judge William Griesbach.

Eighth Circuit 0 vacancies out of 11 judgeships

While the Eighth Circuit remains the sole court of appeals not to see a vacancy open under Biden, there are a number of vacancies open in the district courts covered under the Circuit, including one each in Arkansas, Minnesota, Nebraska, and South Dakota, and two pending in Missouri. Of these, only the seat in Minnesota has a nominee (Jerry Blackwell, who is awaiting a floor vote). Of the remaining vacancies, the White House has failed to nominate any U.S. Attorneys in those states, boding poorly for the likelihood of any agreement on judicial nominees.

Ninth Circuit – 1 vacancies out of 29 judgeships (one nominee pending)

Compared to other courts of appeals, the White House has had comparative success in confirming judges to the Ninth Circuit, naming six, with a seventh pending a judiciary committee vote. The district courts covered by the Ninth Circuit were equally successful for the White House, which has already confirmed 19 judges to (compared 14 judges that the Trump Administration named over four years).

An additional 13 nominees are currently pending to fill 19 vacancies, eight in California, four in Washington, and one in Oregon. Of the seats needing nominees, four are in California (two on the Central District and two on the Southern District). Another two are in Alaska and Idaho respectively, which have two Republican senators apiece.

Tenth Circuit – 1 vacancy out of 12 judgeships (one nominee pending)

The Kansas seat vacated by Judge Mary Briscoe is the oldest appellate vacancy in the country. Judge Briscoe announced her move to senior status in January 2021, and a nominee, Jabari Wamble, was announced in August 2022. Wamble has yet to have a Committee hearing but could, in theory, be confirmed early next year.

Among the states covered by the Tenth Circuit, there are eight district court vacancies, out of which two have nominees. Five of the six nomineeless vacancies are in states with two Republican senators, with particularly long-pending vacancies in Kansas, Oklahoma, and Utah, in particular. Given the nomination of Wamble in Kansas and the successful confirmation of Trina Higgins to be U.S. Attorney in Utah, it is possible that the White House is able to reach an agreement with senators to fill the vacancies shortly.

Eleventh Circuit – 1 vacancy out of 12 judgeships (one nominee pending)

Judge Beverly Martin announced her retirement from the Eleventh Circuit in July, ultimately leaving the court in late September. The Biden Administration nominated civil rights attorney Nancy Abudu to the court in December, but then unwittingly delayed Abudu’s hearing by quixotically claiming that she was under Supreme Court consideration. While no serious observer believed that Abudu would be nominated to the Supreme Court, her consideration ensured that Abudu’s nomination would not be processed until a nominee was named. Furthermore, Abudu’s nomination proved deeply controversial and deadlocked in Committee, forcing a discharge vote that has yet to occur. Given the risk to Abudu’s nomination if Warnock were to lose, it is likely that Democrats would seek to prioritize her nomination if the runoff went poorly.

On the district court level, Alabama has two pending vacancies, one from the elevation of Judge Andrew Brasher in the Trump Administration, and the second from Judge Abdul Kallon’s untimely resignation. Both lack nominees as outgoing Republican senator Richard Shelby expressed his opposition to any left-of-center nominee. With Shelby’s retirement and the election of Katie Britt to the Senate, it remains to be seen if a package can be reached (it’s possible that Alabama senators may demand the renomination of Trump nominee Edmund LaCour.

Meanwhile, Florida has more nominee-less vacancies than any other state: six. Both Senator Marco Rubio and Florida’s Democratic House delegation recommended attorney Detra Shaw-Wilder (a Democrat) to the Southern District of Florida last year, but no nominee has hit the Senate yet. The recent announcements of U.S. Attorney nominees to two of the three open positions in Florida, however, could presage a thaw in negotiations over the state’s appointments.

Conclusion

On one side, one could argue that the Senate has plenty of time to fill these vacancies, as well as more that will inevitably open over the next two years. After all, despite a packed legislative calendar, the Senate has already confirmed eighty-five nominees (and will likely confirm more before the end of the Congress). However, it’s also important to recognize the fragility of the Democrat’s narrow majority. Just because 50 members held together over the last two years is no guarantee that it will last another two. In a sense, winning the Georgia runoff and securing a 51st seat will be all the more important for Democrats if they seek to rival Trump’s judicial legacy.

Scott Colom – Nominee to the U.S. District Court for the Northern District of Mississippi

Mississippi District Attorney Scott Colom has built a name for himself as a “progressive” prosecutor, frequently writing and advocating for changes in the justice system. Colom has now been tapped for a vacancy on the federal bench in Mississippi.

Background

A native of Columbus, Mississippi, Colom was born on December 25, 1983. He graduated from Millsaps College in 2005 and from the University of Wisconsin Law School in 2009. He subsequently spent two years as a staff lawyer for the Mississippi Center for Justice before joining Colom & Colom in private practice.

While maintaining his private practice, Colom also served as a city and municipal court judge as well as a part-time prosecutor in Columbus.

In 2015, Colom defeated 30-year-incumbent Forrest Allgood in a contentious race for district attorney for the 16th Judicial District of Mississippi, where Colom currently serves.

History of the Seat

Colom has been nominated for a vacancy on the U.S. District Court for the Northern District of Mississippi. This seat opened on November 1, 2021, when Judge Michael Mills took senior status. Colom was recommended to the White House in November 2021 by U.S. Rep. Bennie Thompson, the sole Democrat in Mississippi’s Congressional delegation.

Legal Experience

Colom started his legal career at the Mississippi Center for Justice, a nonprofit law firm focused on racial justice issues and then spent five years in private practice. Among the most notable cases he handled with the firm, Colom represented Taylor Bell, an Itawamba Agricultural School student who was disciplined by the school for publishing a rap song on Facebook that contained vulgar lyrics and criticized two coaches at the school. See Miss. Student Challenges Suspension Over Rap Song, A.P. State & Local Wire, Dec. 4, 2012. The district court dismissed Bell’s challenge, finding that the song was not protected under the First Amendment. See Bell v. Itawamba Cnty. Sch. Bd., 859 F. Supp. 2d 834 (N.D. Miss. 2012). However, a divided panel of the Fifth Circuit reversed the dismissal, finding that the disciplining of a student for purely off-campus activities violates the First Amendment. See Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280 (5th Cir. 2014). The full Fifth Circuit took the matter en banc and affirmed the district court’s decision. See Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379 (5th Cir. 2015) (en banc).

Since 2016, Colom has served as district attorney for the 16th Judicial District in Mississippi, which covers four counties in Northeastern Mississippi. His campaign against longtime incumbent Forrest Allgood involved criticism of the incumbent’s “tough on crime” record and the number of overturned convictions under his watch. See Leon Neyfakh, How to Run Against a Tough-on-Crime DA – And Win, Slate, Nov. 12, 2015.

Notably, as D.A., Colom was asked to review criminal charges related to the shooting death of Ricky Ball from police officer Canyon Boykin. Colom controversially decided to hand the case to the Attorney General’s office for prosecution, stating that his office handling the case would have an appearance of bias given their close relationship with the police department. See Jeff Amy, District Attorney Hands Police Shooting Prosecution to State, A.P. State & Local, July 6, 2016. However, after Democratic Attorney General Jim Hood was replaced by Republican Lynn Fitch in the 2019 elections, Fitch dropped the charges against Boykin, prompting criticism by Colom, who claimed that he was not consulted in the decision. See DA: Bad Time to Drop Charge of Ex-Cop in Black Man’s Death, A.P. Int’l, May 29, 2020.

In other matters, Colom supported the release of Steven Jessie Harris, who had been held for 11 years without trial, to a state mental health facility. Emily Wagster Pettus, Man Held 11 Years Without Trial Will Go to Mental Facility, A.P. State & Local, June 14, 2016. He also dropped murder charges against Brittania Smith, noting that toxicology reports did not support that she had fatally poisoned her child. See Murder Charge Dropped Against West Point Woman, A.P. State & Local, July 11, 2016. Colom also dropped murder charges against Eddie Lee Howard, who spent 23 years on death row, after his conviction was based on debunked bite mark evidence. See Leah Willingham, Murder Charge Dismissed After Debunked Bite-Mark Testimony, A.P. Int’l, Jan. 11, 2021.

Statements and Writings

As a district attorney, Colom has frequently issued statements regarding prosecutions of his office. He has also issued statements on other issues as well. For example, in 2021, Colom was one of the politicians who was discovered to have unpaid campaign finance fines (in his case $50). See Taylor Vance, Mississippi Elected Officials, Candidates Owe Thousands in Unpaid Campaign Finance Fines, Northeast Mississippi Daily Journal, July 1, 2021. In the article, Colom blamed the failure to pay on a lack of notice from the Secretary of State’s office, noting that a predecessor had sent out email notifications. See id. (quoting Scott Colom).

Specifically, Colom has been vocal about the use of special prosecutors to prosecute cases of police misconduct, arguing that keeping the cases with the elected prosecutors’ offices creates an appearance of bias. See Why one North Mississippi D.A. Thinks Special Prosecutors Hold the Key in Police Shootings, Mississippi Today, Aug. 20, 2018.

In addition, Colom has frequently joined amicus briefs and letters with other prosecutors. For example, Colom signed onto an amicus brief with the Fifth Circuit opposing cash bail for misdemeanor defendants. See Attorney General Racine, Other Prosecutors and Law Enforcement Leaders Call for End to Cash Bail for Misdemeanor Defendants, States News Service, Aug. 10, 2017. Colom also signed onto a Supreme Court brief seeking to overturn a 241 year sentence imposed by Missouri on a juvenile. See 75 Judges, Prosecutors, Probation, Corrections, Law Enforcement Leaders Call on Supreme Court to Reject 241-Year Sentence for Juvenile, Targeted News Service, Mar. 15, 2018. Colom also joined an amicus brief seeking the overturning of a Missouri conviction after new evidence was unearthed. See Elected Prosecutors File State Supreme Court Brief in Support of New Trial for Innocent Man Behind Bars, States News Service, Feb. 11, 2020. He also wrote in support of reducing prison populations in response to the Covid-19 pandemic. See Scott Colom and Miriam Aroni Krinsky, Tragedy of COVID-19 in Prison Shows Need for Decarceration, The People’s Vanguard of Davis, July 3, 2020. See also Elected Prosecutors Call for Dramatic Reduction in Incarcerated and Detained Populations in Response to Coronavirus, The People’s Vanguard of Davis, Mar. 18, 2020.

Overall Assessment

Given Senate Judiciary Committee Chairman Durbin’s commitment to preserve home-state veto power over district court nominees, Colom makes for a curious choice from the Biden Administration for Mississippi. His record overall is strongly liberal and willing to court controversy. Additionally, at only 38, Colom is young enough to have a lengthy tenure on the court. One would think that these would be reasons for Mississippi’s home state senators to block his nomination.

However, the fact that Colom’s nomination has become public suggests that the senators have, at least tentatively, signed off on him. For all of the Administration’s judicial assertiveness, they have largely resisted the urge to override home-state senators on nominations, even in states where they could have arguably done so. As such, it will be interesting to see if Colom’s nomination represents part of a deal with Mississippi senators (perhaps as part of the state’s U.S. Attorney picks), or if Colom was able to strongly impress the senators in meeting with them. As Colom is also a good friend of Mississippi Republican Representative Trent Kelly, it is possible that Colom has fans on the other side of the aisle.

Judge Jonathan Grey – Nominee to the U.S. District Court for the Eastern District of Michigan

Just last year, federal prosecutor Jonathan Grey was tapped to be a U.S. Magistrate Judge on the Eastern District of Michigan. Grey has now been nominated for a lifetime appointment on the court.

Background

Jonathan James Canada Grey received a B.Sc. from Morehouse College in 2004 and a J.D. from the Georgetown University Law Center in 2007. He then clerked for Judge Willie Sands on the U.S. District Court for the Middle District of Georgia and for Judge Damon Keith on the U.S. Court of Appeals for the Sixth Circuit.

After his clerkships, Grey returned to the firm of Seyfarth Shaw, where he had briefly worked before clerking, but left after just a year to become a federal prosecutor in the U.S. Attorney’s Office for the Eastern District of Michigan. In 2016, he shifted to the U.S. Attorney’s Office for the Southern District of Ohio.

In 2021, Grey became a U.S. Magistrate Judge on the Eastern District of Michigan, where he currently serves.

History of the Seat

Grey has been nominated for a seat on the U.S. District Court for the Eastern District of Michigan. This seat opened on May 1, 2022, when Judge Denise Hood moved to senior status.

Legal Career

Grey started his legal career at the firm of Seyfarth Shaw but then spent approximately a decade as a federal prosecutor in Michigan and Ohio. Among the matters he handled as a federal prosecutor, Grey defended the Internal Revenue Service’s failure to file complaints alleged tax evasion against businesses within 90 days of seizure of assets. See Ed White, Feds Returning $205K to Businesses Targeted by IRS, A.P. State & Local Wire, Nov, 20, 2013. Judge Sean Cox ordered the return of the seized funds. See id. While in Ohio, Grey tried the case against Richard Jerel Doyle for illegally possessing a firearm. Northern Ohio Felon Sentenced to 100 Months for Illegally Possessing a Firearm, States News Service, Apr. 7, 2017. Doyle was convicted after a two day jury trial and was sentenced to a prison term of 100 months by Judge Edmund Sargus. See id.

While Grey was with the U.S. Attorney’s Office for the Eastern District of Michigan, Judge David Lawson threw out a conviction in a case he was handling (it is unclear if Grey was trial counsel or joined the case post-trial) for a violation of Brady (the Brady rule requires prosecutors to turn over all exculpatory or mitigating evidence). See United States v. McClellon, 260 F. Supp. 3d 880 (E.D. Mich. 2017). Specifically, Judge Lawson ruled that the government should have turned over information that a key police witness had been suspended for false statements but also noted: “The Assistant United States Attorney cannot be faulted here for the nondisclosure.” Id. at 884.

Political Activity

Grey’s only donation of record that could be found was a $50 donation in 2016 to Charles Hill, a Democrat running for mayor of Stonecrest, Georgia.

Jurisprudence

Grey has served as a federal magistrate judge since his appointment in 2021. One of Grey’s duties as magistrate judge is to issue Reports and Recommendations on substantive motions for the district judge. See, e.g., Huizar v. Comm’r of Soc. Sec., 2022 U.S. Dist. LEXIS 119873 (E.D. Mich. Mar. 4, 2022). During his short tenure, Grey has had a handful of his recommendations rejected in part. For example, Judge Terrence Berg rejected in part Grey’s report recommending the granting in part of motions for summary judgment in an ERISA suit. See Washington v. AT&T Umbrella Ben. Plan No. 3, 2022 U.S. Dist. LEXIS 177510 (E.D. Mich. Sept. 29, 2022). Similarly, Judge Shalina Kumar rejected Grey’s recommendation that a plaintiff’s First Amendment retaliation claim be dismissed. See Seymoure v. Ferguson, 2022 U.S. Dist. LEXIS 179603 (E.D. Mich. Sept. 30, 2022).

Overall Assessment

Given the compressed timeline this year for judicial nominations, it is looking less likely that Grey will be confirmed to the Eastern District before the end of the Congress. However, his nomination should be relatively uncontroversial before the next Congress.

Judge Colleen Lawless – Nominee to the U.S. District Court for the Central District of Illinois

Three years onto the state court bench, Judge Colleen Lawless has been nominated for a seat for the U.S. District Court for the Central District of Illinois.

Background

Born Colleen Rae Schuster, Lawless received a B.A. from Illinois Wesleyan University in 2005 and a J.D. from Northern Illinois University School of Law in 2009.

After graduation, Lawless joined Londrigan, Potter & Randle P.C., becoming a shareholder with the firm.

In 2019, Lawless became an associate judge on the Illinois 7th district Circuit Court. She currently serves on the court.

History of the Seat

Lawless has been nominated for a future vacancy on the U.S. District Court for the Central District of Illinois, which Judge Sue Myerscough has indicated will open upon the confirmation of a successor. In June 2022, Lawless was recommended by Illinois’ Democratic Senators Richard Durbin and Tammy Duckworth for the seat alongside Chicago attorney Johanes Maliza and University of Illinois attorney Rhonda Perry.

Legal Career

Before she became a judge, Lawless spent her entire legal career at Londrigan, Potter & Randle P.C. in Springfield.

At the firm, Lawless handled civil litigation, including representing a plaintiff suing her insurance company in seeking coverage regarding her stay in a facility (the company disputed whether the facility qualifies as a nursing home for benefit purposes). See Perry v. Transamerica Life Ins. Co., 2010 U.S. Dist. LEXIS 67973 (C.D. Ill. July 8, 2010). She also represented Marvin Manns, an African American water maintenance worker who sued the City of Decatur for discrimination after he was terminated after refusing to sign an agreement that gave him a lower pay but allowed him to bypass civil service selection rules. See Manns v. City of Decatur, 2011 U.S. Dist. LEXIS 82780 (C.D. Ill. July 28, 2011) (granting summary judgment to defendants).

Lawless has also handled class action suits, including a Fair Labor Standards Act suit against Treasure Hunters Roadshow. See Lee v. THR & Associates, 2013 U.S. Dist. LEXIS 208963 (C.D. Ill. Apr. 5, 2013).

Jurisprudence

Since 2019, Lawless has served as a judge on the Illinois 7th Judicial Circuit Court, which covers the Springfield area. As a Circuit Court judge, Lawless handles civil and criminal trial-level cases, as well as administrative appeals.

Among the cases that Lawless handled on the bench, she denied an emergency motion from Sean Shea seeking the return of his minor child, who had left the state with the mother. See Cagwin v. Shea, 2022 IL App (4th) 210619-U (Ill. App. Mar. 11, 2022). An appellate court affirmed Lawless’ decision, finding that she appropriately found that injunctive relief was inappropriate.

Overall Assessment

With a career focused on civil cases (which usually draw less controversy), and an uneventful tenure on the state bench, Lawless should be unlikely to draw much ire through the confirmation process. Nonetheless, this may also be why Democrats choose to deprioritize her nomination, pushing more controversial names through while they retain their majority.

Orelia Merchant – Nominee to the U.S. District Court for the Eastern District of New York

Orelia Merchant currently serves as the Chief Deputy to New York Attorney General Letitia James, a role which has given her scope to participate in much of the office’s key litigation. Merchant has now been nominated for a federal judgeship.

Background

Merchant attended Dillard University, an HBCU in New Orleans, getting a B.Sc. in 1992. She then got a Master of Arts in marine science from the College of William & Mary in 1995 and then a J.D. from Tulane University Law School in 1998.

Merchant subsequently worked for four years as regional counsel to the U.S. Environmental Protection Agency and then spent two years as a Special Assistant U.S. Attorney for the Eastern District of Louisiana.

In 2002, Merchant became a federal prosecutor at the U.S. Attorney’s Office for the Eastern District of New York. She held this role until she joined the New York Attorney General’s Office in 2019, where she currently serves.

History of the Seat

Merchant has been nominated for a seat on the U.S. District Court for the Eastern District of New York. This seat opened on January 1, 2022 when Judge William Kuntz took senior status.

Legal Experience

Merchant started her legal advocacy career early, working as a law student to fight plans by a Japanese chemical company to build a plant in Convent, Louisiana, earning the ire of Gov. Mike Foster, who called her and her fellow students “vigilantes” and “outlaws.” See Tulane University Law Students Help Poor People of Convent, Louisiana, Keep Out Another Chemical Plant, CBS News Transcripts, Oct. 19, 1998. After law school, Merchant continued her environmental advocacy, working with the EPA on complaints against Pole Air Corp. for alleged violations of clean air laws from the company’s radio tower. See Epa Cites Pole Zero for Air Pollution, PR Newswire, July 27, 2001.

Merchant subsequently worked as a special assistant U.S. Attorney (SAUSA) with the U.S. Attorney’s Office for the Eastern District of Louisiana, where she handled civil cases, including employment discrimination. See, e.g., Capers v. Henderson, 153 F. Supp. 2d 846 (E.D. La. 2001).

From 2002 to 2019, Merchant worked as a federal prosecutor with the U.S. Attorney’s Office for the Eastern District of New York, working in the Civil Division. Among her time with the office, Merchant was awarded for her work on litigation post-Hurricane Sandy involving FEMA. Other matters she handled for the office included defending civil asset forfeitures in criminal cases. See, e.g., Buculei v. United States, 440 F. Supp. 2d 225 (E.D.N.Y. 2006). Merchant also handled government defense against employment discrimination cases and tort claims. Compare Andretta v. Napolitano, 922 F. Supp. 2d 411 (E.D.N.Y. 2013) to Korotkova v. United States, 990 F. Supp. 2d 324 (E.D.N.Y. 2014).

Since 2019, Merchant has served as Chief Deputy Attorney General for the State of New York. In this position, Merchant heads the Division of State Counsel, which includes the Litigation Bureau and the Civil Recoveries Bureau.

Political Activity

Merchant has a handful of political donations to her name, all to Democrats.

Overall Assessment

Having spent the past two and a half decades in litigation, Merchant comes to the federal bench well prepared for its challenges. However, given the limited Senate calendar, Merchant is unlikely to be confirmed before the end of the Congress.