Author: Harsh Voruganti

John Frank Murphy – Nominee to the U.S. District Court for the Eastern District of Pennsylvania

Intellectual property attorney John Frank Murphy is Sen. Patrick Toomey’s selection in a package of four nominees to the Eastern District of Pennsylvania.

Background

John Frank Murphy attended Cornell University, getting his B.S. in 1999, and then got a Masters in Science and a Ph.D. from the California Institute of Technology in 2002 and 2004. Murphy then got a J.D. from Harvard Law School in 2007.

After graduating, Murphy clerked for Judge Kimberly Moore on the U.S. Court of Appeals for the Federal Circuit. Murphy then joined the Philadelphia office of Baker Hostetler, where he currently serves as a partner.

History of the Seat

Murphy has been nominated for a seat on the U.S. District Court for the Eastern District of Pennsylvania. This seat opened on August 31, 2018, when Judge Lawrence Stengel moved to senior status.

Despite this seat opening with two years left in the Trump Administration, no nominee was put forward for this vacancy.

Legal Experience

Murphy has spent his entire legal career at Baker Hostetler, where he has primarily worked as an intellectual property litigator. At the firm, Murphy handled a significant amount of patent litigation. For example, Murphy was part of the legal team representing Muzak LLC in a suit covering patents for playback of music through telephones and public speaker systems. See Info-Hold, Inc. v. Muzac LLC., 783 F.3d 1365 (Fed. Cir. 2015). He also represented Nokia, Inc. in a patent infringement suit litigated in the Eastern District of Virginia. See Global Touch Solutions LLC v. Toshiba Corp., 109 F. Supp. 3d 882 (E.D. Va. 2015).

Notably, Murphy was part of the legal team for Comcast in a patent infringement suit filed against Sprint alleging that the latter had infringed four of its patents. See Comcast Cable Communications LLC v. Sprint Communications Co. LP., 203 F. Supp. 3d 499 (E.D. Pa. 2016).

Outside the intellectual property context, Murphy represented a number of plaintiffs suing to block the Pennsylvania Secretary of State’s certification of ExpressVote XL electronic voting machines, challenging the security, reliability, and accuracy of the machines. See Nat’l Election Def. Coalition v. Boockvar, 266 A.3d 76 (Pa. Commw. LEXIS 567 2021).

Political Activity

Murphy has donated to a number of candidates throughout his career, including Pennsylvania Sen. Pat Toomey, who has received approximately $4000. While most of Murphy’s donations have been to Republicans, he did donate $100 to the Attorney General campaign of Steve Dettelbach, a Democrat who currently serves as director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (Dettelbach was also a partner at Baker Hostetler).

Overall Assessment

With his background in intellectual property law and a willingness to back Republicans, Murphy is likely to attract support from members of both parties. As such, he will likely sail to confirmation.

140 CommentsLeave a comment

Kelley Hodge – Nominee to the U.S. District Court for the Eastern District of Pennsylvania

In 2017, Kelley Hodge became the first African American woman to serve as District Attorney for Philadelphia. Hodge is now poised to become a federal judge in the city.

Background

Born November 17, 1971in Abingdon, Pennsylvania, Kelley Brisbon Hodge grew up in Montgomery County. She received a B.A. from the University of Virginia in 1993 and a J.D. from the University of Richmond T.C. Williams School of Law in 1996. Hodge then joined the Richmond Public Defender’s Office.

In 2004, Hodge joined the Philadelphia District Attorney’s Office. In 2011, Hodge was appointed by Governor Tom Corbett to be safe schools advocate in Philadelphia and from 2015 to 2016, she was executive assistant to the president of the University of Virginia before returning to Pennsylvania to be of counsel at the firm of Elliott Greenleaf.

In 2017, after the resignation of Philadelphia District Attorney Seth Williams, Hodge was appointed to be interim D.A., which she held until the inauguration of Larry Krasner in 2018.

Hodge subsequently returned to Elliott Greenleaf, where she stayed until moving to Fox Rothschild’s Philadelphia office in 2020, where she currently serves.

History of the Seat

Hodge has been nominated for a seat on the U.S. District Court for the Eastern District of Pennsylvania. This seat opened on June 1, 2021, when Judge Petrese Tucker moved to senior status.

Legal Experience

Hodge has held a variety of legal positions throughout her career, from serving as a public defender, a prosecutor, in private practice, and in policy positions. She started her career at the Richmond Public Defender’s office, where she defended Roosevelt Brackett, who was charged with arson and murder for allegedly setting his friend on fire. See Alan Cooper, Man Convicted of Murder, Arson; Ruled Responsible for Friend’s Third-Degree Burns and Death, Richmond Times-Dispatch, Jan. 9, 2001. She also defended Donald McMillian, who was convicted of murder for stabbing Lonnice Wilson. See Alan Cooper, Judge Convicts Richmond Man of Murder in Stabbing, Richmond Times-Dispatch, Feb. 2, 2002.

In 2004, Hodge moved to become a prosecutor in Philadelphia. While with the office, Hodge prosecuted Dante Robinson for attempted murder, robbery, and weapons related charges arising from the shooting of a delivery driver in Southwest Philadelphia. See Julie Shaw, Daily News Driver Describes Holdup-Shooting, The Philadelphia Daily News, Aug. 11, 2007. Hodge also worked to establish Philadelphia’s Veterans Court. See Karen Heller, Veterans Court Winning Cases, The Philadelphia Inquirer, May 26, 2010.

In 2011, Governor Tom Corbett, a Republican appointed Hodge to the Pennsylvania Commission on Crime and Delinquency to be a safe schools advocate in Philadelphia. In her role, Hodge worked on issues of crime and bullying at Germantown High School. See Dylan Purcell and Susan Snyder, Crime Lurks in Little-Used Areas of Philadelphia Schools, The Philadelphia Inquirer, May 11, 2012.

In 2017, after the resignation of Philadelphia DA Seth Williams, the city’s judges chose Hodge to serve out his term. See Chris Brennan, Judges Will Vote, Via Top Hat, For Interim DA, The Philadelphia Inquirer, July 19, 2017. While she headed the office, Hodge oversaw a series of prosecutions on illegal street gambling. See Chris Brennan, ‘Family Affair’: 9 Nabbed in Alleged Long-Running Philly Street Lottery, The Philadelphia Inquirer, Oct. 21, 2017. She also worked with Attorney General Josh Shapiro to prosecute Democratic members of an election board with intimidating Republican and Green party voters and seeking to change ballots. See Chris Brennan, Election Fraud Charges Filed in 197th District Special Election, The Philadelphia Inquirer, Oct. 31, 2017.

After returning to private practice, Hodge was appointed to a three-person committee overseeing the distribution of funds to victims of child abuse from the Philadelphia Achdiocese. See Mark Scolforo, Pennsylvania Dioceses Outline Child Sex Abuse Victim Funds, A.P. State & Local, Nov. 8, 2018. Hodge was also hired to conduct an external investigation at Vassar University regarding innappropriate behavior by women’s basketball coach Candice Signor-Brown. See Head Coach Signor-Brown Departed from Vassar Amidst Multiple Investigations, Swarthmore Phoenix, Nov. 20, 2020. She was also hired by the Sharon Hill Borough to conduct an independent use of force investigation after the shooting death of an 8 year old at a football game. See Robert Moran, DA: Initial Tests Say Police Shot 8-Year-Old; Fanta Bility Died, 3 Were Injured After Sharon Hill Football Game. A Grand Jury Empaneling Is Sought, Philadelphia Inquirer, Sept. 28, 2021.

Political Activity

Hodge is a Democrat and donated $500 to the Presidential campaign of Kamala Harris in 2020.

Overall Assessment

Hodge has, over the course of a 25 year legal career, built experience in criminal and civil law. As she has the bipartisan support of her home state senators, she will likely sail to confirmation.

63 CommentsLeave a comment

The Flipside of Youthful Appointments – Are Young Judges More Likely to Leave the Bench Early?

In the coming month, two Obama appointed judges are resigning from the bench. Judge Gregg Costa, who serves on the Fifth Circuit and Judge Abdul Kallon, who serves on the U.S. District Court for the Northern District of Alabama, are both resigning on August 31, 2022. This, in and of itself, is not particularly remarkable, until one considers that both judges, giving up lifetime appointments, are barely knocking on the doors of their 50s. It is unusual for a judge to leave the bench before reaching eligibility for retirement, but for two to leave in the same month when they have decades of tenure ahead of them does raise a question. Both Costa and Kallon were appointed to the bench at age 40. Do judges appointed at younger ages, despite the hope for their longevity, tend to leave the bench early?

The Rule of 80

Federal judges become eligible for retirement (or for reducing their caseload under senior status) under the Rule of 80. That means that, when the length of a judge’s active tenure on the federal bench added to their age meets or exceeds 80, they are eligible to retire at full pay. As such, a judge appointed to the bench at age 52 would have to serve fourteen years in active status before becoming eligible for senior status. In comparison, a judge appointed at age 56 would serve only twelve years in active status before becoming eligible. The exception to the rule of 80 is if the judge was appointed to the bench before age 50, in which case the judge becomes eligible on their 65th birthday regardless of the length of their tenure. Because of this exception, in theory, judges appointed in their 30s and 40s have a lengthy tenure as an active judge before hitting eligibility for senior status or retirement.

Judges Who Resigned Before Hitting the Rule of 80

Looking back fifty years, the last ten presidents have appointed a total of eighty judges who resigned from the bench before hitting eligibility for senior status/retirement. Breaking it down, eighteen of President Nixon’s appointees to the federal bench resigned early. In comparison, President Ford’s number is three, President Carter appointed eleven, President Reagan appointed nine, President George H.W. Bush appointed eleven, President Clinton appointed thirteen, President George W. Bush appointed eleven, and President Obama has appointed four early resignations (including Costa and Kallon). So far, none of President Trump’s or President Biden’s appointees have resigned early.

Looking at the eighty resignees, they were generally appointed to the bench at comparatively younger ages. While the average judicial nominee over the last fifty years has been appointed to the bench between 50 to 52 years of age, only thirteen of the eighty resignees were appointed to the bench at age fifty or above. In comparison, eighteen of the resignees were appointed between the ages of forty-five and forty-nine, thirty-one were appointed between forty and forty-four, and eighteen were under the age of forty when they were appointed to the bench. As such, a significant majority of judges who resigned over the last fifty years were under the age of forty-five when appointed to the bench.

This is even more notable when one considered how few nominees, comparatively speaking, were traditionally appointed to the bench at such young ages. Consider the following:

  • Nixon appointed forty-six judges under the age of forty five. Twelve of them or 26% resigned early. In comparison, only 3.2% of judges appointed at forty five or older resigned early.
  • Ford appointed eleven judges under the age of forty five. Three of them or 27.3% resigned early. In comparison, none of his judges appointed at forty five or older resigned early.
  • Carter appointed fifty judges under the age of forty five. Seven of them or 14% resigned early. In comparison, only 1.9% of judges appointed at forty five or older resigned early.
  • Reagan appointed one hundred and eleven judges under the age of forty five. Five of them or 3.6% resigned early. In comparison, 1.8% of judges appointed at forty five or older resigned early.
  • George H.W. Bush appointed sixty-eight judges under the age of forty five. Eight of them or 11.8% resigned early. In comparison, only 2.3% of judges appointed at forty five or older resigned early.
  • Clinton appointed sixty-two judges under the age of forty five. Seven of them or 11.3% resigned early. In comparison, only 1.9% of judges appointed at forty five or older resigned early.
  • George W. Bush appointed forty-nine judges under the age of forty five. Five of them or 10.2% resigned early. In comparison, 2.1% of judges appointed at forty five or older resigned early.
  • Obama appointed forty-six judges under the age of forty five. Two of them or 4.3% resigned early. In comparison, 0.7% of judges appointed at forty five or older resigned early.

All in all, 11% of judges appointed by these Presidents who were under the age of 45 at the time of appointment ended up resigning early, a disproportionately high number.

Nor can this discrepancy be explained by younger judges merely having a larger window to resign early. Of the judges appointed under the age of forty, for example, they left the bench at an average age of forty-seven, with most of them serving less than a decade on the bench.

Why Do Younger Appointees Leave Early?

So, what can explain why judges appointed to the bench early are more likely to leave the bench early? Looking at the judges who resigned early, there are three main motivations for these resignations.

The first and largest category of resignations involve judges who returned to private practice. Many of these judges cited the comparatively low pay for judges in motivating their decision to retire. Central District of California Judge Stephen Larson, for example, resigned his lifetime appointment three years in, noting that a federal judge’s salary is insufficient to support his family of seven children. Larson was only forty-five when he left the bench. About twenty years before Larson left the bench, fellow California Judge Raul Ramirez also resigned the bench at forty-five, again citing the comparatively low pay that comes with being a federal judge. Other judges, like Costa, cited a desire to return to the role of an advocate. No matter what the justification, however, there is no denying that a federal judge can easily quintuple their salary (or more) by moving to private practice. For a judge who is looking at a decade or more until their caseload eases with senior status, the desire for a more lucrative career may be a strong motivator.

The second category of judges are those who accepted other appointments or careers (please note that judges elevated to the courts of appeals or supreme court are not considered resignations). This includes judges who accepted appointments on state courts, including Eastern District of Michigan Judge Patricia Boyle, who was appointed to the Michigan Supreme Court. Boyle’s son noted that she felt she could do more for the people of Michigan as a state judge. Other judges took executive appointments, including Judge Louis Freeh, who resigned a seat on the Southern District of New York at forty-three to become Director of the Federal Bureau of Investigation, and Judge Mark Filip, appointed to the Northern District of Illinois at thirty-seven, who left four years later to serve as U.S. Deputy Attorney General.

The final category of resignations include judges who resigned due to scandals or ethical issues. This group includes judges who served on the bench for a comparatively longer period of time. Colorado Judge Edward Nottingham, for example, served nearly two decades on the bench before resigning amidst multiple misconduct scandals. Despite the length of his tenure, Nottingham was still five years away from senior status eligibility when he retired. Similarly, Middle District of Alabama Judge Mark Fuller resigned his lifetime appointment after twelve years on the bench after an arrest for misdemeanor battery against his wife.

Explanations

So what does all this tell us about why younger judges tend to leave the bench early. The answer might be remarkably simple. For judges appointed after 20+ years of legal experience, a lifetime appointment can be seen as a capstone on their career. However, younger judges may see it as a tool for career advancement, and, as such, might be more willing to step away if they find another position that is sufficiently attractive.

Of course, none of this suggests that appointing younger judges is completely counterproductive. The vast majority of federal judges, appointed young or otherwise, stay on the bench until retirement eligibility. Furthermore, younger appointees are more likely to be elevated to appellate positions. Every justice currently serving on the Supreme Court, for example, was originally nominated for the federal bench at age forty-five or younger (although Roberts and Kagan were not confirmed on their original nominations). However, the likelihood of younger judges to resign their appointments early could mitigate the utility of appointing younger candidates. As such, future Presidents may consider whether their 40-year-old nominee would will leave the bench a decade down the road.

55 CommentsLeave a comment

Justice Tamika Montgomery-Reeves – Nominee to the U.S. Court of Appeals for the Third Circuit

After a trailblazing career in Delaware, 41 year old Tamika Montgomery-Reeves is poised to join the U.S. Court of Appeals for the Third Circuit.

Background

Tamika Renee Montgomery-Reeves was born on April 29, 1981. Montgomery-Reeves attended the University of Mississippi, graduating magna cum laude. She continued on to the University of Georgia Law School. She then clerked on the Delaware Court of Chancery and then joined Weil Gotschal & Manges in New York City before becoming a partner at Wilson Sonsini Goodrich & Rosati in Wilmington Delaware.

In 2015, Montgomery-Reeves was appointed by Governor Jack Markell to the Delaware Court of Chancery. In 2019, she was elevated to the Delaware Supreme Court by Governor John Carney, where she currently serves.

History of the Seat

Montgomery-Reeves has been nominated to Judge Thomas Ambro’s seat on the U.S. Court of Appeals for the Third Circuit. Ambro was nominated to the Third Circuit by President Bill Clinton in 2000 and will take senior status upon the confirmation of a successor.

Legal Experience

For approximately ten years before she was appointed to the bench, Montgomery-Reeves worked in private practice in both New York and Delaware, focusing largely on business and commercial litigation.

Among the notable cases she handled, Montgomery-Reeves successfully convinced the Delaware Court of Chancery that an advancement suit is required to go to arbitration. See Riley v. Brocade Communs. Sys., 2014 Del. Ch. LEXIS 71 (Del. Ch. 2014). In another case, Montgomery-Reeves defended a merger against a class action suit brought by stockholders. See In re Riverbed Tech., Inc. Stockholders Litig., 2015 Del. Ch. LEXIS 241 (Del. Ch. 2015).

Jurisprudence

Montgomery-Reeves served on the Delaware Court of Chancery between 2015 and 2019. When she was appointed to the seat in 2015, she was the first african american judge on the court. See Randall Chase, Delaware Senate Approves Cabinet, Court Nominees, A.P. State & Local, Oct. 28, 2015. On the Chancery Court, Montgomery-Reeves oversaw suits in equity (suits seeking injunctions or court orders of specific performance).

In her first key opinion on the Court of Chancery, Montgomery-Reeves found the directors of Volcano Corp. did not violate their fiduciary duties to their stockholders in closing a deal to the sell the company. See David Marcus, Chancery’s Montgomery-Reeves Extends Business Judgment Protections to Tender Offers, The Deal Pipeline, July 6, 20166. Her ruling was unanimously affirmed by the Delaware Supreme Court. See David Marcus, Delaware Supreme Court Upholds Extension of KKR, The Deal Pipeline, Feb. 9, 2017.

In another suit, Montgomery-Reeves dismissed a suit filed against Mattel’s Board of Directors after they declined to respond to a shareholder demand letter seeking documentation connected to a severance payout to a former executive. See Seyfarth Shaw LLP, Delaware Chancery Court Throws Out Claims Over $10 Million Severance Payment to CEO, JD Supra, Jan. 26, 2017. In contrast, Montgomery-Reeves declined to dismiss a breach of fiduciary duty suit arising from directors’ decisions to award themselves stock options in subsidiary corporations. See Seyfarth Shaw LLP, Delaware Chancery Court Declines to Dismiss Challenges to Director Option Grants and Outside Investor Voting Agreement, JD Supra, July 11, 2017.

Since 2019, Montgomery-Reeves has served as Associate Justice on the Delaware Supreme Court, the highest court in Delaware. She was Delaware’s first African American Supreme Court Justice.

While on the court, Montgomery-Reeves authored a majority opinion finding that Delaware law did not prevent “sophisticated” stockholders who were represented by counsel from waiving their rights under law for an appraisal of their stock value at sale as part of their stockholder agreements. See Delaware Supreme Court Enforces Waiver of Statutory Appraisal Rights, Impact Financial News, Sept. 20, 2021. Montgomery-Reeves also authored a majority opinion upholding a $6.1 million verdict for shareholders in a breach of fiduciary duty case. See Jeff Montgomery, Del. Justices Uphold Mixed $6M Ruling on Solar Co. Breaches, Law360, Oct. 14, 2021.

Outside the commercial litigation context, Montgomery-Reeves wrote the majority opinion holding that Senate records submitted to the University of Delaware archives by President Biden were not subject to demands under the Delaware Freedom of Information Act. See Jeff Montgomery, Del. Justices Mostly Uphold FOIA Block on Biden Senate Docs, Law360, Dec. 7, 2021.

Overall Assessment

Over the last fifteen years, Montgomery-Reeves has built a strong reputation in the Delaware legal community. Additionally, there is still little in Montgomery-Reeves’ record to warrant strong opposition to the Third Circuit. As such, it is likely that Montgomery-Reeves would have a relatively painless confirmation to the Third Circuit.

89 CommentsLeave a comment

Judge F. Kay Behm – Nominee to the U.S. District Court for the Eastern District of Michigan

Judge Frances Kay Behm, who has been tapped for the federal bench in Michigan, currently serves as a state court judge based out of Flint.

Background

Frances Kay Behm received a B.A. from the Albion College in 1991 and her J.D. from the University of Michigan Law School in 1994.

After graduation, Behm joined the office of Braum Kendrick Finbeiner as an associate. In 1997, Behm moved to the firm of Winegarden, Haley, Lindholm & Robertson. In 2008, Behm became a solo practitioner. In 2009, Behm was appointed to the Genesee County Circuit and Probate Court by Governor Jennifer Granholm. She has served on the court ever since, currently assigned to the Family Division.

History of the Seat

Behm has been nominated for a seat on the U.S. District Court for the Eastern District of Michigan. This seat opened on August 6, 2021, when Judge David Lawson moved to senior status.

Legal Career

Behm has held two primary positions in her pre-bench career. From 1994 to 1997, Behm worked as an associate at Braum Kendrick Finbeiner in Saginaw. Then, from 1997 to 2008, Behm was an associate with Winegarden, Haley, Lindholm & Robertson in Flint. In both positions, Behm focused on business litigation and property law.

Political Activity

Before her appointment to the bench, Behm made a handful of political donations, including to Granholm and to Sen. Hillary Clinton.

Jurisprudence

Behm has served as a probate judge in Genesee County since her appointment in 2009. Behm has also migrated through the other divisions on the court, including the family division, where she currently serves.

Among the criminal cases she handled on the bench, Behm sentenced Allen Brown of Flint to 22.5 to 45 years in prison upon his plea to second-degree murder. In the strangulation-related death of Jessica Flood, Behm sentenced Aaron Thornton to a minimum of 25 years in prison.

In 2021, Behm was sued in federal court by pro se plaintiff Ca’ron Lloyd, who alleged damages against several defendants arising from his arrest and conviction before Behm. See Lloyd v. Drigett, Case No. 2:20-cv-13099, 2021 U.S. Dist. LEXIS 81157 (E.D. Mich. Apr. 28, 2021). Judge Sean Cox dismissed Behm from the suit for judicial immunity but allowed the suit to proceed against two of the defendants. See id. at *9.

Overall Assessment

While Behm has served on the state bench for approximately a dozen years, and as an attorney for another dozen before that, her background in probate and family law is still unusual as a path to the bench.

Nonetheless, Behm’s record as a jurist lacks any significant notes of controversy and, as such, is not likely to attract significant opposition.

84 CommentsLeave a comment

Jerry Blackwell – Nominee to the U.S. District Court for the District of Minnesota

For more than thirty years, Jerry Blackwell has been a leader in the Minneapolis legal community. The outspoken attorney has now been tapped for the federal bench.

Background

A native of Kannapolis, NC, Jerry W. Blackwell received his B.A. from the University of North Carolina Chapel Hill in 1984 and then a J.D. from the University of North Carolina Chapel Hill School of Law in 1987.

After graduation, Blackwell joined Robins Kaplan LLP in Minneapolis, serving as a partner until he moved to Nilan Johnson Lewis in 1996. In 2000, Blackwell started the firm of Blackwell Igbanugo in Edina, Minnesota. In 2006, he moved to Blackwell Burke where he currently works as a partner.

In 2015, Blackwell was named a possible candidate for the federal bench to replace Judge Michael Davis. See Randy Furst, Names Begin to Surface for New Federal Judge Post, Minneapolis Star Tribune, Jan. 3, 2015. Minnesota Supreme Court Justice Wilhemina Wright was nominated instead and confirmed.

History of the Seat

Blackwell has been nominated for a seat on the U.S. District Court for the District of Minnesota. This seat opened on December 31, 2021, when Judge Susan Richard Nelson moved to senior status.

Legal Career

While he has moved firms a few times, Blackwell has spent his entire legal career in private practice in the Minneapolis area. However, this has netted him some prominent representations, including being the attorney for Minneapolis native Prince. See Cheryl Johnson, Purple House is Demolished; Prince’s Neighbors Say They Don’t Know Why He Leveled It, Minneapolis Star Tribune, Apr. 3, 2003.

Early in his career, Blackwell represented the Government of India in suits related to the Bhopal gas explosion. See David Phelps, ‘Zealous Advocate’ Wanted to Be Lawyer From Second Grade, Minneapolis Star Tribune, Aug. 5, 2012. Later, he defended 3M against lawsuits alleging that the company’s air blowers deposited infectious bacteria in surgical incisions. See Joe Carlson, 3M Case May Alter Medical Lawsuits, Minneapolis Star Tribune, Oct. 28, 2017. Blackwell also authored a successful pardon application for Max Mason, who was convicted in 1920 for allegedly raping a white woman (whose own doctor had testified that she had not been assaulted). See Brooks Johnson, Historic Pardon in Duluth Lynching, Minneapolis Star Tribune, June 13, 2020. The conviction had also prompted the lynching of three innocent black men in Duluth. See id.

Notably, Blackwell joined the prosecution team against police officer Derek Chauvin who was charged with murdering George Floyd in 2020. See Nicholas Bogel-Burroughs, What to Know About Jerry W. Blackwell, The Prosecutor Making Opening Arguments, N.Y. Times, Mar. 29, 2021. As part of the trial, which ended in a conviction, Blackwell made opening and closing remarks.

Political Activity

Blackwell has been a frequent political donor throughout his legal career. Among the benefits of his donations are Governor Tim Walz, Attorney General Keith Ellison, and President Barack Obama.

Writings and Statements

Throughout the years, Blackwell has written and spoken frequently in the media, particularly on issues of race. In 1992, Blackwell commented regarding the acquittal of police officers charged with beating Rodney King and subsequent rioting, noting:

“When we have systems in place designed to protect people and mete out justice, and when it’s apparent that they don’t further justice, my concern is that people are left to their own devices. Self-preservation steps in at some point and you have outbreaks, resistance, throughout the country” See Mark Brunswick, Jim Walsh, Kevin Diaz, At Rallies in Twin Cities, Many Decry Injustices While Police Aim to Reassure, Minneapolis Star Tribune, May 1, 1992.

In another article, Blackwell noted his emphasis on diversity in hiring, noting that it is “good business” as it attracts clients who are “reluctant to work with a firm that was hostile to hiring people of color and women.” Deborah Caulfield Rybak, Diversity ‘Good Business’ For Black-Owned Law Firm, Minneapolis Star Tribune, Feb. 9, 2003 (quoting Jerry W. Blackwell).

As President of the Minnesota Association of Black Lawyers, Blackwell had objected to the firm of Maslon, Edelman, Borman, & Brand from joining Twin Cities Diversity in Practice, a consortium of corporations and law firms seeking to hire minority attorneys, citing the firm’s representation of white students challenging affirmative action policies at the University of Michigan. See Katherine Kersten, 2 Standards for Diversity in the Legal Fraternity, Minneapolis Star Tribune, Sept. 7, 2006.

Overall Assessment

Jerry Blackwell would come to the federal bench with extensive experience with federal practice and with the Minneapolis legal community. While his outspokenness may draw some opposition, Blackwell is still nonetheless favored to join the federal bench before the end of the year.

150 CommentsLeave a comment

Roopali Desai – Nominee to the U.S. Court of Appeals for the Ninth Circuit

A go-to election lawyer in Arizona (and frequent legal foe of Trump Ninth Circuit consideree Kory Langhofer), Roopali Desai has been tapped for the Ninth Circuit.

Background

Roopali Hardin Desai received a B.A. and an M.P.H. from the University of Arizona and then received a J.D. from the University of Arizona Law School in 2005. Desai then clerked for Judge Mary Schroeder on the U.S. Court of Appeals for the Ninth Circuit and then joined Lewis & Roca in Phoenix.

In 2007, Desai became a Partner at Coppersmith Brockelman, where she currently works.

History of the Seat

Desai has been nominated for an Arizona seat on the U.S. Court of Appeals for the Ninth Circuit. This seat opens when Judge Andrew Hurwitz moves to senior status, which he will go upon confirmation of a successor.

Political Activity

Desai is a frequent donor to Arizona Democrats, including Sen. Kyrsten Sinema, Rep. Greg Stanton, and Secretary of State Katie Hobbs.

Legal Experience

Desai has spent almost her entire legal career at the firm of Coppersmith and Brockelman, where she has made a name for herself as a go-to attorney for Arizona Democrats. Desai notably served as the campaign attorney for Sinema when she first ran for Congress in 2012. See Jeremy Duda, Arizona State Sen. Kyrsten Sinema Staffs Up Big and Early, Arizona Capitol Times, Jan. 3, 2012. In 2016, Desai represented the Arizona Democratic Legislative Campaign Committee in successfully challenging the presence of GOP Senate candidate Candace Begody-Begay. See Ben Giles, Judge Tosses Begody-Begay From Election Ballot, Arizona Capitol Times, June 24, 2016. Similarly, Desai represented the U.S. Green Party in seeking to remove a slate of alleged spoiler Green Party candidates being run by Republicans in an effort to shift close elections. See Jeremy Duda, Arizona Green Party Files Suit Over Alleged Sham Candidates, Arizona Capitol Times, Sept. 7, 2010. Outside of the election context, Desai has also represented the Coalition of Arizona Acupuncture Safety. See Gary Grado, Acupuncture: Dry Needling in Arizona, Arizona Capitol Times, Nov. 11, 2013.

A summary of her other key cases follows:

Mask Mandates

In 2021, Desai led the legal challenge against a statewide ban on mask mandates passed in Arizona and supported by Governor Doug Ducey. See Howard Fischer, Judge to Hear Arguments Over Legality of Mask Prohibition, Arizona Capitol Times, Aug. 25, 2021. Desai was able to convince the Arizona Supreme Court of her position, as the court unanimously struck down the provisions. See W. Schutsky, Ducey’s Judges Go Rogue, Arizona Capitol Times, Nov. 2, 2021.

2020 Election

Desai represented Arizona Secretary of State Katie Hobbs in defending against lawsuits challenging the validity of Arizona’s presidential election, which awarded Arizona’s electoral votes to President Joe Biden. See Howard Fischer, Judge Rejects GOP Official’s Effort to Void Election Won By Biden, Arizona Capitol Times, Dec. 6, 2020.

Voting Laws

Desai has frequently litigated against measures that restrict voting access. For example, she was part of the legal team unsuccessfully fighting an Arizona bill that restricted ballot collection. See Feldman v. Reagan, 843 F.3d 366 (9th Cir. 2016) (en banc).

Redistricting

In 2010, Desai represented a commissioner on Arizona’s Independent Redistricting Commission in defending the Commission’s actions in a suit where opposing counsel included future Arizona Supreme Court Justice Bill Montgomery. See State ex rel. Montgomery v. Mathis, 231 Ariz. 103 (Ariz. App. 2012).

Labor Law

In 2013, Desai was part of a legal team that secured a ruling against newly passed Arizona statutes that limited the ability of labor unions to engage in picketing and in using payroll deductions for political speech. See United Food & Commer. Workers Local 99 v. Bennett, 934 F. Supp. 2d 1167 (D. Ariz. 2013).

School Vouchers

In 2018, Desai represented Save Our Schools Arizona, a group opposing school vouchers in promoting an initiative blocking voucher expansion. Katie Campbell, Voucher Expansion Ballot Measure Prompts Questions on Voter Protection, Arizona Capitol Times, Sept. 15, 2017.

Marijuana

In the 2020 campaign cycle, Desai represented the Arizona Dispensaries Association in advising it on a legalization campaign. See Hank Stephenson, Pro-Pot Crew Shaping Up, Initiative Not So Much, Yellow Sheet Report, Mar. 20, 2019.

Writings and Statements

As a law student, Desai authored a note analyzing the Arizona Supreme Court’s decision in State v. Minnitt. Roopali H. Desai, State v. Minnitt: Extending Double Jeopardy Protections in the Context of Prosecutorial Misconduct, 46 Ariz. L. Rev. 415 (Summer 2004). In the article, Desai favorably compares Minnitt, which bars retrial when a mistrial was caused by prosecutorial misconduct that was later discovered, with the rule in federal cases, noting that Minnitt “makes clear that a prosecutor cannot avoid the double jeopardy ramifications of his own misconduct by simply concealing that misconduct until a trial is complete.” Id. at 422.

Overall Assessment

As a young nominee with a willingness to engage in bare knuckles litigation on behalf of liberal causes, Desai is likely to attract a fair amount of opposition. However, she has the strong support of Sinema, which will likely smooth her path to confirmation.

266 CommentsLeave a comment

Judge Gina Mendez-Miro – Nominee to the U.S. District Court for the District of Puerto Rico

One half of a judicial supercouple, Judge Gina Mendez-Miro was considered last year for appointment to the First Circuit but is now looking at a lifetime appointment to the District of Puerto Rico. It is an appointment that she is likely to get.

Background

Mendez-Miro received her B.A. magna cum laude from the University of Puerto Rico Rio Piedras Campus in 1996, a Masters in Romance Languages from Princeton University, and her J.D. from the University of Puerto Rico School of Law in 2001. After graduating, Mendez-Miro worked at O’Neill & Borges until 2006, when she joined the Puerto Rico Department of Justice. In 2008, Mendez-Miro shifted to the Office of Court Administration with the Puerto Rico judicial branch, and then served in the Legal Affairs Office until 2013.

In 2013, Mendez-Miro became Chief of Staff to the Puerto Rico Senate. In 2016, Governor Alejandro Garcia Padilla appointed Mendez-Miro to the Puerto Rico Court of Appeals, where she currently serves.

Mendez-Miro is married to Maite Oronoz Rodriguez, who serves as Chief Justice of the Puerto Rico Supreme Court.

History of the Seat

Mendez-Miro has been nominated for a vacancy on the U.S. District Court for the District of Puerto Rico. This seat opened when Judge Carmen Cerezo moved to senior status on February 28, 2021.

Legal Experience

Mendez-Miro has held a variety of legal positions throughout her career, including in private practice, government, and in the legislative branch. Early in her career, for example, she worked on defending the Puerto Rico electoral commission against a suit asserting constitutional claims arising out of the 2004 elections. See Rossello-Gonzalez v. Serra, 2005 U.S. LEXIS 52570 (D.P.R. June 27, 2005).

Later, while working as Chief of Staff to the Puerto Rico Senate, Mendez-Miro represented amici in a suit challenging Puerto Rico’s ban on gay marriage. See Conde-Vidal v. Rius-Armendariz, 2015 U.S. App. LEXIS 23042 (1st Cir. July 8, 2015).

Jurisprudence

Since 2016, Mendez-Miro has served as a Judge with the Puerto Rico Court of Appeals. In this role, Mendez-Miro served as an intermediate appellate judge reviewing trial court and agency decisions.

Because all Puerto Rico state court decisions are written in Spanish, no analysis of her opinions was conducted.

Overall Assessment

As the youngest of the trio, Mendez-Miro is arguably the most “controversial” of the nominees put forward for the District of Puerto Rico. However, even that is not saying much.

There is little in Mendez-Miro’s record that is likely to galvanize opposition, and while she, like most modern judicial nominees, will attract opposition, such opposition is unlikely to derail a smooth confirmation.

49 CommentsLeave a comment

Judge Dana Douglas – Nominee to the U.S. Court of Appeals for the Fifth Circuit

U.S. Magistrate Judge Dana Douglas has practiced before Louisiana state and federal courts for two decades. She has now been tapped for elevation to the U.S. Court of Appeals for the Fifth Circuit.

Background

Dana Douglas graduated from Miami University in 1997 and received a J.D. from Loyola University New Orleans College of Law in 2000.

After graduating, Douglas completed a two-year clerkship with Judge Ivan Lemelle on the U.S. District Court for the Eastern District of Louisiana. After her clerkship, Douglas joined Liskow & Lewis, an energy firm in New Orleans. In 2003, Douglas also joined the New Orleans Civil Service Commission, serving for ten years.

In 2019, Douglas became a federal magistrate judge with the U.S. District Court for the Eastern District of Louisiana. She serves in that capacity today.

History of the Seat

Douglas has been nominated for a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit. This seat opened on with Judge James Dennis’ announcement of her intent to take senior status upon confirmation of her successor. Due to the nature of Dennis’ announcement, the vacancy will not open until Douglas is confirmed.

Legal Career

After her clerkship,Douglas spent her entire legal career at Liskow & Lewis in New Orleans, primarily practicing commercial litigation. For example, Douglas worked alongside future federal judge Brian Jackson in suing to annual a tax sale in New Orleans. See Brookewood Invs. Co. LLC v. Sixty-Three Twenty-Four Chef Menteur Highway, LLC., 958 So. 2d 1200 (La. App. 2007). Douglas also notably represented Dow Chemicals in defending against a class action alleging damages from a tank failure from a chemical facility in St. Charles Parish. See Guidry v. Dow Chem. Co., 214 So. 3d 78 (La. App. 2017).

From 2003 to 2013, Douglas served as a Commissioner on the New Orleans Civil Service Commission, which is charged with reviewing employee appeals of disciplinary actions. In this role, Douglas authored an opinion affirming the suspension and termination of a police officer for committing a battery against a civilian. See Johnson v. Dep’t of Police, 2 So. 3d 501 (La. App. 2008). In a different case, Douglas affirmed disciplinary actions against officers who formed a limited liability company to administer their paid off-duty police details. See Patin v. Dep’t of Police, 159 So. 3d 476 (La. App. 2013).

Jurisprudence

Douglas has served as a magistrate judge on the U.S. District Court for the Eastern District of Louisiana for the last three years. In this role, Douglas has presided over discovery disputes. For example, Douglas denied an effort by Amtrak to subpoena medical records from an employee, finding portions of the subpoena to be unnecessary. See Mike Curley, Amtrak Can’t Get Juvenile Med Docs in Employee Injury Suit, Law360, Oct. 12, 2021. In another case, Douglas ordered the production of documents in response to the plaintiff’s request in a maritime accident case. See Mullen v. Daigle Towing Serv., Civil Action No. 19-11954, 2020 U.S. Dist. LEXIS 258229 (E.D. La. June 1, 2020).

As a magistrate judge, Douglas also handled agency appeals, including appeals from denials of social security benefits. In one case, Douglas recommended the denial of a social security appeal where the plaintiff had failed to follow recommended treatment. See Brooks v. SSA, 2019 U.S. Dist. LEXIS 183467 (E.D. La. Aug. 23, 2019). In another case, she recommended that an ALJ finding that the plaintiff was not disabled be sent back to the ALJ for elaboration of the decision. See Reese v. SSA, 2019 U.S. Dist. LEXIS 230546 (E.D. La. Dec. 20, 2019).

Writings

In 2009, Douglas authored a paper encouraging law firms to recruit and support minority and female employees, noting that having a supportive working environment for a diverse workforce makes business sense for the companies. See Dana M. Douglas, Diversity Refined: The Business Side: Making the Business Case for the Recruitment and Retention of Minorities and Women, 56 LA Bar Jnl. 424 (April/May 2009).

Overall Assessment

As a red-state appellate nominee, Douglas, in theory, doesn’t need support from her home-state senators to get a hearing. For their part, Senators Bill Cassidy and John Kennedy, both Republicans, have issued statements that don’t promise support but also don’t indicate any opposition to a hearing. If Douglas is able to get their support, she is likely to skate to confirmation. If not, she may still be confirmed this Congress, but will likely have to rely on Democrats prioritizing her confirmation.

56 CommentsLeave a comment

Judge Camille Velez-Rive – Nominee to the U.S. District Court for the District of Puerto Rico

Judge Camille Velez-Rive has served as a U.S. Magistrate Judge for nearly two decades. As such, she can be considered a fairly uncontroversial selection for a federal judgeship.

Background

A Puerto Rico native, Camille Lizette Velez-Rive was born in San Juan on February 5, 1968. Velez-Rive received her B.A. from Washington University in St. Louis in 1989 and her J.D. from the University of Puerto Rico School of Law in 1993. After graduating, Velez-Rive clerked for Judge Francisco Rebollo Lopez of the Supreme Court of Puerto Rico. She then joined Pietrantoni Mendez & Alvarez in San Juan as an Associate. In 1998, she became a federal prosecutor with the U.S. Attorney’s Office for the District of Puerto Rico. She held that position until her appointment as a federal magistrate judge in 2004.

History of the Seat

Velez-Rive has been nominated for a vacancy on the U.S. District Court for the District of Puerto Rico. This seat opened when Judge Francisco Besosa moved to senior status on January 1, 2022.

Legal Experience

Velez-Rive started her legal career as a law clerk and then spent three years as an Associate in private practice. She then spent four years at the U.S. Attorney’s Office for the District of Puerto Rico, handling a wide variety of cases.

Notably, Velez-Rive handled a number of appellate matters before the First Circuit, defending the validity of convictions below. See, e.g., United States v. Hernandez-Albino, 177 F.3d 33 (1st Cir. 1999) (affirming conviction for conspiracy to possess cocaine); United States v. Rivera, 171 F.3d 37 (1st Cir. 1999) (affirming denial of motion for new trial); United States v. Morillo, 158 F.3d 18 (1st Cir. 1998) (reversing conviction for conspiracy for insufficiency of evidence); United States v. Hernandez, 146 F.3d 30 (1st Cir. 1998) (challenging sufficiency of evidence for conviction for felon in possession). She also helped brief challenges to suppression motions on appeals from the district court. See, e.g., United States v. Acosta-Colon, 157 F.3d 9 (1st Cir. 1998).

Velez-Rive later transitioned into handling civil cases, defending the federal government against claims brought under the Federal Tort Claims Act (FTCA). See, e.g., De Mangual v. United States, 131 F. Supp. 2d 263 (D.P.R. 2001). Notably, she successfully defended the federal government in a bench trial in a suit brought by a plaintiff who was injured by tripping on an uneven sidewalk. Sepulveda v. United States, 329 F. Supp. 2d 260 (D.P.R. 2004). She also, in that role, defended social security decisions. See, e.g., Cruz v. Barnhart, 265 F. Supp. 2d 173 (D.P.R. 2003); Chaparro v. Massanari, 190 F. Supp. 2d 260 (D.P.R. 2002).

Jurisprudence

Since 2004, Velez-Rive has served as a full-time U.S. Magistrate Judge with the U.S. District Court for the District of Puerto Rico. As a magistrate judge, Velez-Rive wrote reports and recommendations for substantive rulings, handled pleas and arraignments, and reviewed warrant applications.

Among the most notable cases in which she issued recommendations, Velez-Rive’s recommendation to dismiss a political discrimination case against the Mayor of San German was adopted as time-barred. See Llantin-Ballester v. Negron-Irizarry, 353 F. Supp. 2d 206 (D.P.R. 2005). By contrast, Velez-Rive denied motions to dismiss in another political discrimination case, finding that the case should move forward. Torres-Heredia v. Lopez-Pena, 708 F. Supp. 2d 148 (D.P.R. 2008).

On the criminal side, Velez-Rive recommended that a defendant’s motion for a Franks hearing should be denied for failure to offer sufficient factual support. See United States v. Perez Velasquez, 488 F. Supp. 2d 82 (D.P.R. 2006). In another case, Judge Aida Delgado-Colon concurred with Velez-Rive’s recommendation to deny a motion to suppress, finding that the defendant had been validly stopped based on reasonable suspicion. See United States v. Garcia-Robledo, 488 F. Supp. 2d 50 (D.P.R. 2007).

Velez-Rive’s rulings have generally been upheld on appeal. For example, the First Circuit upheld her grant of judgment on the pleadings to the Commonwealth of Puerto Rico in a constitutional claim involving a farmer’s tax credit program. See Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26 (1st Cir. 2008).

Overall Assessment

Nominations to the District of Puerto Rico have rarely brought the same degree of partisan fervor as those to other courts. Judge Velez-Rive’s nomination is unlikely to be any different. Given her extensive experience as a federal magistrate judge, she will likely get bipartisan support.

117 CommentsLeave a comment