Author: Harsh Voruganti

Judge Ana de Alba – Nominee to the U.S. District Court for the Eastern District of California

The Eastern District of California is one of the most heavily overworked courts in the country. The Court has not been expanded in decades, even as caseloads explode, and has relied heavily on senior judges to carry the burden. In an effort to bring some relief, President Biden has nominated state judge Ana de Alba.

Background

A native Californian, de Alba received her B.A. from the University of California Berkeley in 2002 and her J.D. in 2007 from the UC Berkeley School of Law. While a law student, de Alba worked with elementary and middle school students on mock trials. See Minerva Perez, Pupils Convene Court, Los Banos Enterprise, Mar. 30, 2007 After law school, de Alba joined Lang Richet & Patch PC. She also continued her work with mock trial. Thaddeus Miller, Mock Trial Enlightens View of Future for Los Banos Sixth-Graders, Los Banos Enterprise, Mar. 16, 2012. In 2018, de Alba was appointed to the Fresno County Superior Court, where she currently serves.

History of the Seat

de Alba has been nominated to the U.S. District Court for the Eastern District of California, to a seat vacated on December 17, 2019 by Judge Morrison England. On May 21, 2020, the Trump Administration nominated attorney Dirk Paloutzian to replace England, but he was not confirmed before the end of the 116th Congress. de Alba was nominated on January 19, 2022.

Legal Experience

de Alba spent her entire career before becoming a judge at Lang Richet & Patch PC. Among her work there, de Alba represented a credit union in a suit by borrowers alleging promissory fraud that went up to the California Supreme Court. See Riverisland Cold Storage Inc. v. Fresno-Madera Product, 55 Cal. 4th 1169 (Cal. 2013). The California Supreme Court overruled a prior ruling limiting the use of “parol evidence” (evidence of verbal or written agreements outside the language of a contract) in cases of promissory fraud. See id. at 1172. Additionally, while at the firm, de Alba received the Jack Berman Award of Achievement from the California Young Lawyers’ Association in 2012 for her pro bono work, including serving on the Board of Directors for Central California Legal Services, Inc. California Lawyers, Judges to Receive Awards for Legal Service and Excellence, Targeted News Service, Oct. 4, 2012.

Jurisprudence

Since 2018, de Alba has served as a Superior Court judge in Fresno County. In this role, she presides over civil, criminal, and domestic cases. Among the matters she handled on the bench, de Alba presided over a suit by the American Chemistry Council alleging that California had improperly listed SPF systems using methylene diphenyl diisocynates (MDI) as priority products for the state’s green chemistry program, restricting their commercial use. See Judge Questions Core ACC Claim in Suit Over DTSC Spray Foam Listing, Inside Cal/EPA, Jan. 15, 2021. de Alba ordered the delisting of the challenged products, while rejecting three other challenges. Judge Scraps California DTSC’s Spray Polyeurethane Foam Listing, Inside Cal/EPA, Apr. 2, 2021. California’s appeal of the ruling is currently pending. California Urges Appellate Court to Uphold Green Chemistry Product Listing, Inside Cal/EPA, Feb. 4, 2022.

Additionally, during the COVID-19 pandemic, de Alba gained some news attention for her rulings relating to scheduling and court compliance. In one ruling, de Alba refused to extend or excuse deadlines for a defendant’s community service, noting that she had seen no evidence that the defendant had worked towards the service before the pandemic hit. See Jeannette Parada, COVID-19 or No COVID-19, Fresno Judge Wants Defendant’s Community Service Done – Or It’s Jail, The People’s Vanguard of Davis, June 29, 2020. In another case, de Alba withdrew bench warrants that had been issued for defendants who failed to appear, noting that they did not have access to steady housing or transportation, and allowed them to participate virtually. See Phoebe Glick, Coronavirus Court Precautions Can Lead to Unforeseen Complications, The People’s Vanguard of Davis, Aug. 7, 2020.

In other rulings, de Alba found probable cause that a defendant had committed an act of domestic violence based on the testimony of the reporting officer. See Angelina Caplanis, Defender Argues Victim Lied on 911 Call; Judge Still Finds Probable Cause for Arrest, The People’s Vanguard of Davis, July 15, 2020.

Overall Assessment

Despite her youth, de Alba has built a significant amount of experience on issues of criminal and civil law. It will be interesting to see if her rulings during the Covid-19 pandemic are questioned, either on the right or the left, during confirmation.

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Robert Huie – Nominee to the U.S. District Court for the Southern District of California

The U.S. District Court for the Southern District of California is currently short five judges. Having appointed two judges to the court already, the Biden Administration is slowly naming candidates for the remaining vacancies, including Jones Day partner Robert Huie.

Background

Robert S. Huie received his B.A. from Calvin University, a private evangelical university in Grand Rapids, Michigan, in 1998 and his J.D. from Yale Law School in 2002.

After law school, Huie spent a year at Wiggin Dana before clerking for Judge Jose Cabranes on the U.S. Court of Appeals for the Second Circuit. Huie then joined Latham & Watkins as a civil litigator.

In 2008, Huie became an Assistant United States Attorney based in San Diego. In 2020, he moved to become a Partner at Jones Day, where he currently serves.

History of the Seat

Huie has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on October 31, 2018, by Judge Michael Anello’s move to senior status. On November 21, 2019, President Trump nominated federal prosecutor Michelle Pettit to fill this vacancy. However, Pettit was not processed by the Senate Judiciary Committee before the end of the Trump Administration.

On January 19, 2022, President Biden nominated Huie to fill this seat.

Legal Experience

Throughout his career, Huie has worked both as a federal prosecutor and in private practice at a number of different law firms. In the latter capacity, Huie has worked as part of lawsuits related to insurance payouts from the September 11 terrorist attacks. See, e.g., S.R. Int’l Bus. Ins. Co. v. World Trade Ctr. Props. LLC., 467 F.3d 107 (2d Cir. 2006).

Notably, as a federal prosecutor, Huie was one of the leading prosecutors in the Fat Leonard scandal, in which 33 people were charged as part of a conspiracy to bribe U.S. Navy officials in exchange for classified intelligence. See Craig Whitlock, ‘Fat Leonard’ Probe Expands to Ensnare More than 60 Admirals, Wash. Post, Nov. 5, 2017. Huie’s work led to a number of guilty pleas, including of U.S. Navy Commander Jose Luis Sanchez. See Elliot Spagat, Navy Official is Highest Yet to Plead Guilty in Bribery Case, A.P. State & Local, Jan. 7, 2015. In other matters, Huie prosecuted Terry Lee Steward for threatening judges who presided over his medical malpractice case. Man Gets Time Served and Home Detention for Threatening to Kill Judges, City News Service, Feb. 28, 2011.

Overall Assessment

While the Biden Administration has generally sought out “unconventional” backgrounds in their judicial nominees, Huie, a former federal prosecutor and current biglaw partner, represents a brand of nominees that generally skated to confirmation in the past. While Huie may still draw some opposition, he is likely to be confirmed comfortably nonetheless.

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Natasha Merle – Nominee to the U.S. District Court for the Eastern District of New York

The Biden Administration has tapped attorneys from many prominent civil rights organizations for the bench. Eastern District nominee Natasha Merle, who works for the NAACP Legal Defense Fund, is part of this trend.

Background

Merle attended the University of Texas at Austin, graduating in 2005. Merle then attended New York University Law School, graduating in 2008. She then clerked for Judge Robert Carter on the U.S. District Court for the Southern District of New York before joining the Gulf Region Advocacy Center.

After two years at the Advocacy Center, Center became a federal public defender in the Eastern District of New York and then clerked for Judge John Gleeson on the U.S. District Court for the Eastern District of New York. She then joined the NAACP Legal Defense Fund, where she currently serves as deputy director of litigation.

History of the Seat

Merle has been nominated for a seat on the U.S. District Court for the Eastern District of New York. This seat opened on February 1, 2021 by statute because Judge Roslynn Mauskopf was designated to the Director of the Administrative Office of the United States Courts.

Legal Experience

Merle has held a number of legal positions throughout her career, although she has spent the majority of it at the NAACP Legal Defense Fund. Early in her career, Merle spent a year as a federal public defender, where she worked on appeals. See, e.g., People v. Rowser, 139 A.3d 489 (N.Y. App. Div. 2016).

Merle has been with the NAACP Legal Defense Fund since 2013. Notably, she was part of the legal team representing Duane Bell, a Texas man whose death sentence was overturned by the Supreme Court because of racially prejudiced comments presented by a defense expert during the sentencing phase of his trial. See Buck v. Davis, 137 S. Ct. 759 (2017). In a media statement, Merle noted that the case was about whether a state could execute someone after a sentencing infected with “racial bias.” Feliks Garcia, Supreme Court Slams Texas Man’s ‘Racially Tainted’ Death Sentence, Calls It “Indefensible”; The Jury’s Decision Hinged on Expert Witness Testimony That Claimed That Black People Were Statistically More Prone to Violent Criminal Behavior, The Independent, Oct. 5, 2016.

In additional matters, Merle was part of the legal team suing Alabama over its voter ID law, and argued the case before the Eleventh Circuit. Mallory Moensch, Civil Rights Groups Appeal Alabama Voter ID Ruling, A.P. State & Local, Feb. 22, 2018. See also Greater Birmingham Ministries v. Merrill, 250 F. Supp. 3d 1238 (N.D. Ala. 2017). She also brought suit against Arkansas for vote dilution of black voters in judicial elections. See Frazier v. Kelley, 460 F. Supp. 3d 799 (E.D. Ark. 2020).

In non-voting matters, Merle sued on behalf of black communities in Philadelphia over excessive force used during protests over police brutality in 2020. See Ellie Silverman and Mike Newall, Trump: May Send Officers to Phila.; It Was Among Cities He Named as He Lauded Use of Force Against Oregon Protesters. Kenney Said They Are Not Wanted Here, Philadelphia Daily News, July 21, 2020. She also sued the Alamance County Sheriff for allegedly using excessive force against protesters. See Isaac Groves, Second Lawsuit Charges Sheriff, Police with Suppressing Vote, Times-News, Nov. 9, 2020.

Statements and Writings

In her role at the NAACP LDF, Merle has frequently written and commented on the law, particularly in relation to pending litigation. For example, Merle noted, in connection with a lawsuit against President Trump’s Election Integrity Commission, that “[a]llegations of voter fraud have historically been used to target minority voters and deprive them full access to the franchise.” See Press Release, NAACP Legal Defense Fund, LDF, Local Alabama Organization File Federal Lawsuit Challenging President’s ‘Election Integrity’ Commission, Targeted News Service, July 18, 2017.

Additionally, Merle has also submitted letters to government officials, for example, sending a letter to the Texas Secretary of State asking for additional efforts to accommodate voting for those internally displaced by Hurricane Harvey. See Sam Levine, Civil Rights Group Threatens Texas If It Doesn’t Protect Voting Rights of Hurricane Victims, Huffington Post, Oct. 13, 2017.

Overall Assessment

Like many of her colleagues tapped for the bench and executive positions, Merle is likely to see strong opposition. Nonetheless, given Democrats’ relative discipline on judicial nominations, Merle is still favored to join the bench by the summer.

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Nusrat Choudhury – Nominee to the U.S. District Court for the Eastern District of New York

Nominated to the federal bench in January, Choudhury has already attracted attention for being the first female Muslim federal judicial nominee. Aside from the historic significance, Choudhury also makes a notable nominee for a significant paper trail of litigation and statements on hotly contested issues.

Background

Born in 1976 in a Bangladeshi American family, Choudhury earned a B.A. from Columbia University in 1998, an M.P.A. from Princeton in 2006 and a J.D. from Yale Law School in 2006. She then clerked for Judge Denise Cote on the U.S. District Court for the Southern District of New York and then for Judge Barrington Daniels Parker on the U.S. Court of Appeals for the Second Circuit.

After her clerkships, Choudhury joined the ACLU, staying with the organization until the present day. In her time there, Choudhury has transitioned through the National Security Project and the Racial Justice Program before her current role as Legal Director of the American Civil Liberties Union of Illinois.

History of the Seat

Choudhury has been nominated for a seat on the U.S. District Court for the Eastern District of New York. This seat opened when Joseph Bianco was elevated to the Second Circuit on May 17, 2019. On February 12, 2020, the Trump Administration nominated Saritha Komatireddy to fill this vacancy, but she never received a hearing before the Senate Judiciary Committee.

On September 1, 2021, Choudhury was recommended for a nomination by Senate Majority Leader Chuck Schumer to the White House. She was nominated on January 19, 2022.

Legal Experience

Choudhury has spent virtually her entire legal career at the American Civil Liberties Union in various capacities, and has had the opportunity to work on a number of prominent civil rights cases. We have summarized some of these matters below.

National Security Project

Early in her career at the ACLU, Choudhury worked primarily on national security cases. For example, she represented Amir Mohamed Meshal, who was detained in Ethiopia and allegedly interrogated by the FBI on allegations of supporting Islamic militants. Beth DeFalco, NJ Man Sues FBI over his Detention in Ethiopia, A.P., Nov. 10, 2009. Additionally and notably, Choudhury argued before the Ninth Circuit in a challenge to the Transportation Safety Administration’s No-Fly List. Nigel Duara, Federal Appeals Court in Ore. Takes Up No-Fly Case, A.P., May 11, 2012. The Ninth Circuit ultimately sided with Choudhury, allowing the suit to move forward. See Latif v. Holder, 686 F.3d 1122 (9th Cir. 2012).

Racial Justice Program

Choudhury also worked at the ACLU’s Racial Justice Program, where she worked on an agreement with the Boston Police Department to track racial profiling. Jess Bidgood, Boston Police Focus on Blacks in Disproportionate Numbers, Study Shows, N.Y. Times, Oct. 9, 2014. She also worked on an ACLU report that concluded that black drivers in Florida are stopped disproportionately by police. See Lizette Alvarez, Florida Said to Ticket More Blacks on Seatbelts, N.Y. Times, Jan. 28, 2016.

ACLU of Illinois

Since 2020, Choudhury has served as the Legal Director of the ACLU of Illinois. In this role, Choudhury has been supportive of Chicago Mayor Lori Lightfoot’s efforts to reform policing. See A.D. Quig, Lori’s Lieutenants Hitting the Exit; Brain Drain Threatens Push for Change in Policing, Crain’s Chicago Business, May 3, 2021.

Statements and Writings

In her role at the ACLU, Choudhury has spoken out frequently in speeches as well as media statements. For example, Choudhury has spoken out against the No-Fly List, arguing that the process of placing individuals on the list lacks transparency. See Chris Hawley, John Curran, Terror Suspects Seek to Clear Names, A.P., Mar. 21, 2011. Choudhury has also been critical of the privatization of parole and probation. See Tina Rosenberg, Out of Debtors’ Prison, With Law as the Key, N.Y. Times Blogs, Mar. 27, 2015. In another article, Choudhury has spoken on the “racial wealth gap” which can lead to fines and parking tickets having more severe consequences for minorities. See Paul Kiel, Debt and the Racial Wealth Gap, N.Y. Times, Jan. 3, 2016.

In an interview discussing her new role as the Legal Director of the ACLU of Illinois, Choudhury stated, in a quote that is likely to be frequently repeated: “Our job and my purpose in life is to make sure we use the law as a tool for social justice.” See A.D. Quig, The Takeway; Nusrat Jahan Choudhury, Crain’s Chicago Business, Mar. 23, 2020.

Furthermore, as a law clerk to Judge Cote, Choudhury authored an article that was critical of efforts by Western governments to “liberate” Muslim women by banning religious articles of clothing and headscarves, noting that this can infringe on religious freedom and the autonomy of the women in question, as well as another article discussing women’s rights in the Afghani Constitution. See Nusrat Choudhury, From the Stasi Commission to the European Court of Human Rights: L’Affaire du Foulard and the Challenge of Protecting the Rights of Muslim Girls, 16 Colum. J. Gender & L. 199 (2007); Nusrat Choudhury, Constrained Spaces for Islamic Feminism: Women’s Rights and the 2004 Constitution of Afghanistan, 19 Yale L.J. & Feminism 155 (2007).

Overall Assessment

Given her experience with civil rights law and her time at the ACLU, Choudhury’s nomination was already likely to attract strong opposition. However, her self-description as having a life purpose to effectuate social justice through the law is likely to be used to argue that Choudhury is an activist, rather than a jurist. In defense, Choudhury can cite the context of the quote, made in her role as an advocate, not as a judge, while critics may counter that it would be hard for Choudhury to set aside her “purpose in life” when she takes the bench. Ultimately, Choudhury’s nomination is likely to be hotly contested, potentially even coming down to the vote of Vice President Kamala Harris.

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Arianna Freeman – Nominee to the U.S. Court of Appeals for the Third Circuit

After Judiciary Chairman Chuck Grassley’s reversal on blue slips in the Trump Administration, he processed and confirmed three Trump nominees to the Third Circuit over the objections of their home state senators. With the shoe now on the other foot, Arianna Freeman looks strongly favored to join the Third Circuit, even without the support of her home-state senator.

Background

Arianna J. Freeman received her B.A. with Honors from Swarthmore College in 2001 and J.D. from Yale Law School in 2007. Freeman then clerked for Judges C. Darnell Jones and James Giles on the U.S. District Court for the Eastern District of Pennsylvania.

After her clerkships, Freeman joined the Federal Community Defender Office for the Eastern District of Philadelphia. Freeman has stayed with the office since then, currently serving as managing attorney.

History of the Seat

Freeman has been nominated for a Pennsylvania seat on the U.S. Court of Appeals for the Third Circuit, which will be vacated by Judge Theodore McKee upon the confirmation of the successor.

Legal Experience

Freeman has spent her entire legal career as an indigent defender, serving in various capacities with the Federal Community Defender’s Office, including her current role as managing director.

Among the matter she handled with the office, Freeman persuaded a district judge to grant habeas relief to a state prisoner, noting that the prisoner had suffered ineffective assistance of counsel when his counsel failed to raise on appeal a claim that his judge had improperly closed the courtroom for his trial. See Tucker v. Werenowicz, 98 F. Supp. 3d 760 (E.D. Pa. 2015). However, the ruling was subsequently overturned by the Third Circuit Court of Appeals. See Tucker v. Superintendent Graterford SCI, 677 Fed. Appx. 768 (3d Cir. 2017).

Freeman also argued a number of appeals before the Third Circuit in her role. See, e.g., Norris v. Brooks, 794 F.3d 401 (3d Cir. 2015). In one notable case, Freeman persuaded the Third Circuit to grant habeas relief to a defendant whose Confrontation Rights were violated when the trial court admitted a co-defendant’s confession, which the prosecution improperly acknowledged implicated the defendant. See Brown v. Sci, 834 F.3d 506 (3d Cir. 2016).

Outside the habeas context, Freeman unsuccessfully argued before the Third Circuit that the district court acted correctly in finding a defendant to not be a “career offender” under the Armed Career Criminal Act. See United States v. Ramos, 892 F.3d 599 (3d Cir. 2018).

Overall Assessment

Despite her youth, Freeman has established herself as one of the foremost advocates for the indigent in eastern Pennsylvania. Additionally, Freeman does not have a paper trail of controversial stances that might emperil Democratic support for her nomination. As such, Freeman is strongly favored for confirmation to the Third Circuit.

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Judge J. Michelle Childs – Nominee to the U.S. Court of Appeals for the D.C. Circuit

Judge Juliana Michelle Childs has spent approximately fifteen years on the state and federal bench in South Carolina. While she was a frontrunner for a Fourth Circuit vacancy in her home state, Childs is currently nominated to a seat on the powerful D.C. Circuit.

Background

Julianna Michelle Childs was born in Detroit on March 24, 1966. Childs graduated from the University of South Florida in 1988 and from the University of South Carolina Law School in 1991. After graduating, Childs joined the Columbia office of Nexsen Pruet, LLC. where she became the firm’s first African American partner.

In 2000, Childs was named by Gov. Jim Hodges to be deputy director of the labor division of the South Carolina Department of Labor, Licensing, & Regulations. In 2002, Childs was named to the South Carolina Workers’ Compensation Commission.

In 2006, Childs was selected to be a Circuit Court judge on the Richland County bench. In 2010, Childs was nominated by President Obama and confirmed by the U.S. Senate to the U.S. District Court for the District of South Carolina, where she currently serves.

History of the Seat

Childs has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit. The seat will open at the move to senior status of Judge David Tatel.

Political Activity

Childs has a limited political history, largely consisting of a single donation to Al Gore’s presidential campaign in 1999.

Legal Career

Childs started her legal career at the firm of Nexsen Pruet before moving on to the South Carolina Department of Labor and the South Carolina Workers’ Compensation Commission.

Childs worked at Nexsen Pruet between 1992 and 2000, including serving as the firm’s first African American Partner. At the firm, Childs worked on employment, business litigation, and family law. She also tried over twenty cases before a jury. Among these trials, Childs represented Bamberg County in a suit brought by the estate of an inmate at the Bamberg County Detention Center after he committed suicide in his cell. See Stanley v. Bamberg County, 1997-CP-05-19. After a hung jury, the case settled. On the federal side, Childs represented L&L Wings, Inc. in a Title VII discrimination lawsuit, which ended with a jury verdict for the plaintiffs on one claim of retaliation and claims of sexual harassment, with the defendants winning other claims. See Harris and Prasky v. L&L Wings, Inc., 132 F.3d 978 (4th Cir. 1997).

Childs served on the South Carolina Workers’ Compensation Commission after her appointment in 2002 to 2006. In that role, Childs adjudicated issues of compensation, disability, benefits, and workplace injury. During her tenure, the Commission voted to eliminate the positions of Court Reporters to reduce expenditures, and the reporters filed suit. See Morris v. South Carolina Workers’ Compensation Commission et al., No. 26201 (S.C. Aug. 21, 2006). While a trial judge sided with the reporters, the South Carolina Supreme Court unanimously reversed. See id.

Jurisprudence

Since her unanimous confirmation in 2010, Childs has served as a federal district judge on the U.S. District Court for the District of South Carolina. In addition, Childs was a state court judge between 2006 and 2010. Some of the cases she has presided over are summarized below.

State Bench

Childs served on the Richland County Circuit Court between 2006 and 2010, during which time she presided over both criminal and civil matters in a court of general jurisdiction. During her tenure, Childs presided over approximately 42 jury trials and 8 bench trials. For example, Childs presided over a $3.5 million verdict for a plaintiff struck by a motor vehicle operator due to the alleged negligence of the South Carolina Department of Transportation. See Cohen v. S.C. Dep’t of Trans., 2005-CP-27-188. In another notable decisions on the state bench, Childs dismissed a re-indictment based on allegations of molestation by the victim’s stepfather. See State v. Gerald Williamson, 2006-CP-40-2803. Childs found that a ten year delay in the indictment of the case unduly prejudiced the Defendant and justified the dismissal.

Childs also sat as Acting Justice for the South Carolina Supreme Court on occasion, including in one case where she reversed a circuit court’s failure to sustain a Batson challenge after a juror was struck due to objections based on their dreadlocks. See McCrea v. Gheraibeh, 669 S.E.2d 333 (S.C. 2008).

Election Law

Childs has made multiple key rulings on issues of election law. In 2011, Childs rejected a challenge to South Carolina’s open primary law brought by the Greenville County Republican Party, ruling that the open primary did not violate the First or Fourteenth Amendments. See Greenville Cnty. Repub. Party Exec. Comm. v. South Carolina , 824 F. Supp. 2d 655 (D.S.C. 2011).

In another notable decision, Childs struck down South Carolina’s absentee ballot witness requirements, finding the requirements to violate voters’ rights given the Covid-19 pandemic. However, Childs’ ruling was overturned by the U.S. Supreme Court, which reinstated the requirement. See Adam Liptak, Supreme Court Revives Witness Requirement for South Carolina Absentee Ballots, N.Y. Times, Oct. 6, 2020.

Sitting by Designation on Fourth Circuit

During her time on the district court, Childs sat by designation numerous times on the Fourth Circuit. Among her decisions in so sitting, Childs joined the court in reversing a grant of summary judgment to defendants in a Title VII action, noting that the denial of a better severance package could constitute an adverse employment action under Title VII. See Gerner v. Cnty. of Chesterfield, 674 F.3d 264 (4th Cir. 2012). In another opinion, Childs joined a unanimous court in affirming a life imprisonment sentence for a defendant convicted of drug trafficking. U.S. v. Edmonds, 679 F.3d 169 (4th Cir. 2012).

Writings and Statements

Throughout her life and career, Childs has frequently commented on the law and her role as judge. For example, as a state court judge, Childs authored one of a collection of letters published by the ABA Commission on Women in the Profession, in which she discussed her rise to become a judge. See Judge J. Michelle Childs, The Letter and the Spirit, 48 Judges’ Journal 23 (Fall 2009). In the piece, Childs notes that a judges is a “public citizen who bears a special responsibility for the quality of our justice system.” and adds: “[Judges] are charged with the spirit as well as the letter of the law in orderly decision making.” Id. at 26.

Overall Assessment

As an appellate nominee, Childs is hard to challenge as well qualified, with more than a decade on the federal bench and three decades of legal experience. However, the key backdrop to Childs’ nomination is the Supreme Court vacancy left by Justice Stephen Breyer. It is an open secret that Childs is being considered for the Supreme Court (although sources vary on how strongly) and that she is the preferred candidate of GOP Sen. Lindsey Graham, one of the few Senate Republicans to consistently support Biden judicial nominees.

Regardless of whether Childs is nominated for the high court or remains pending for the D.C. Circuit, her nomination is likely to face the same fate, a comfortable confirmation with a handful of GOP senators in support.

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Jennifer Rearden – Nominee to the U.S. District Court for the Southern District of New York

In 2020, upon the recommendation of Democratic Senator Kirsten Gillibrand, the Trump Administration nominated Jennifer Rearden to the U.S. District Court for the Southern District of New York.  Rearden was, however, not confirmed before the end of the Administration.  She now has a second chance after being renominated by Biden.

Background

50-year-old Jennifer Hutchison Rearden received her B.A. from Yale University in 1992 and a J.D. in 1996 from New York University School of Law.  After law school, Hutchison joined Davis Polk & Wardwell, before moving to the Atlanta office of King & Spalding.  Since 2003, Rearden has been a Partner with Gibson, Dunn & Crutcher in New York City.

History of the Seat

Rearden has been nominated to the vacancy on the U.S. District Court for the Southern District of New York vacated on October 25, 2018 by Judge Richard Sullivan’s elevation to the U.S. Court of Appeals for the Second Circuit.  Rearden was previously nominated for this vacancy by President Trump on February 12, 2020 but was not confirmed by the Senate. Rearden was renominated by Biden on January 19, 2022.

Political Activity

Rearden has been an active political donor, having made over thirty political contributions over the last thirteen years.[1]  While Rearden has given to politicians of both parties (her Republican donees include Rudolph Giuliani and Chris Christie), most of her donations have been to Democrats.[2]  She has contributed particularly to female Democratic senators and senate candidates, giving them almost $12000 in the 2016 cycle.[3]

Legal Career

Rearden has spent her entire career in private practice, working at various big law firms as a commercial litigator.  Specifically, Rearden has handled a number of complex commercial cases, including matters related to tax, contract, and compliance matters.[4]

Among her more prominent cases, Rearden represented Philip Morris Inc. and other tobacco companies in a suit against the City of New York challenging the City’s regulation of tobacco prices.[5]  She also represented Home Depot in an Arizona suit involving tax deductions.[6]

Notably, Rearden argued in New York State Court a suit seeking Worker’s Compensation benefits for an employee’s domestic partner (through a civil union).[7]  The Appellate Division of the New York Supreme Court found, in a divided opinion, that statutory provisions supporting worker’s compensation benefits for surviving spouses did not cover partners in a civil union.[8]

Rearden’s nomination has drawn criticism from Rep. Rashida Tlaib for her alleged role in the prosecution against Steven Donziger.[9]  Donziger, an environmental lawyer, had obtained a $9.5 billion judgment against Chevron for environmental damages in Ecuador, leading to Chevron pulling their assets from that country and suing Donziger in New York for racketeering.[10]  The latter suit eventually led to criminal contempt charges when Donziger refused to follow a court order to surrender his electronic devices, arguing that they contained confidential client information.[11]  While Tlaib’s statement, a tweet by Donziger, and the related article suggests that Rearden was among the Gibson attorneys who sued Donziger, a search of the case documents does not show Rearden’s name.  The key opinion instead identifies five other Gibson attorneys.  Additionally, there appears to be no evidence on the case’s PACER record of Rearden entering an appearance in the case.

Writings

Rearden has been a fairly prolific author, frequently writing articles on various legal issues, including issues of civil practice, procedure, and substantive law.

For example, Rearden has written on the Columbia Pictures v. Bunnell ruling in the Central District of California, which held that random access memory (RAM) could be discoverable material that needed to be preserved in preparation for litigation.[12]  She has similarly expounded on a similar decision by Judge Shira Scheindlin on production of metadata during discovery.[13] 

Overall Assessment

While Rearden was not confirmed under Trump, she has a strong chance under the current Administration.  While she is likely to draw the requisite opposition from the right that all Biden nominees are drawing, Rearden may also see some liberal opposition based on her time at Gibson Dunn and her perceived role in the Donziger prosecution.

[2] See id.

[3] Id.

[5] See Nat’l Ass’n of Tobacco Outlets v. City of New York, 27 F. Supp. 3d 415 (S.D.N.Y. 2014).

[6] Home Depot USA, Inc. v. Ariz. Dep’t of Rev., 230 Ariz. 498 (Ariz. Ct. App. Div. 1 2012).

[7] Matter of Langan v. State Farm Fire & Cas., 48 A.D.3d 76 (N.Y. Sup. App. Div. 2007).

[8] See id. at 78-79.

[9] Zack Budryk, Tlaib Blasts Biden Judicial Nominee Whose Firm Sued Environmental Lawyer, The Hill, Jan. 21, 2022, https://thehill.com/policy/defense/590819-tlaib-blasts-biden-judicial-nominee-whose-firm-sued-environmental-lawyer. 

[10] See id. 

[11] See id. 

[12] Jennifer H. Rearden and Farrah Pepper, Oh No, Ephemeral Data, N.Y. Law Journal, Mar. 22, 2010, https://www.gibsondunn.com/wp-content/uploads/documents/publications/Rearden-Pepper-OhNoEphemeralData.pdf.  

[13] Jennifer Rearden, Farrah Pepper, and Adam Jantzi, Scheindlin’s ‘Day Laborer’ Decision: Much Ado About Metadata, Law Technology News, Feb. 22, 2011, https://www.gibsondunn.com/wp-content/uploads/documents/publications/Rearden-%20Pepper-%20Scheindlin%27s-Day-Laborer%27-Decision-LTN-2-22-11.pdf.

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Jennifer Rochon – Nominee to the U.S. District Court for the Southern District of New York

New York’s Democratic Senators share a split in recommending candidates for the federal bench, with the more junior Kirsten Gillibrand getting one pick for every three or four that the more senior Chuck Schumer gets. After nominating four Schumer picks to New York District Courts, the White House has chosen Gillibrand selection Jennifer Rochon.

Background

Born in 1970 in Michigan, Jennifer Louise Rochon received her B.A. from the University of Michigan in 1992 and, after volunteering with the Peace Corps, a J.D. in 1997 from New York University School of Law. After law school, Rochon clerked for Judge Maryanne Trump Barry on the U.S. Court of Appeals for the Third Circuit, before joining Kramer Levin Naftalis & Frankel, where she became a Partner in 2006. Since 2013, Rochon has been general counsel for Girl Scouts of the USA.

History of the Seat

Rochon has been nominated to the vacancy on the U.S. District Court for the Southern District of New York vacated on May 1, 2021 by Judge George Daniels’ move to senior status. Rochon was recommended for the vacancy by Gillibrand and was nominated on December 15, 2021.

Political Activity

Rochon has made occasional political donations throughout her career, including donations to Biden, Reps. Antonio Delgado, Anthony Brindisi, and Max Rose.

Legal Career

Rochon spent the first thirteen years of her post-clerkship career at Kramer Levin Naftalis & Frankel, where she served both as associate and as a litigation partner. Early in her career, she represented immigration organizations as amici in constitutional challenges to the Immigration and Nationality Act. See Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001); Phu Chan Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002); Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002).

Among her more prominent cases, Rochon represented a dental floss manufacturer in a false advertising suit against Pfizer for claims that its mouthwash was as effective as flossing, securing a preliminary injunction against the challenged advertising. See McNeil-PPC, Inc. v. Pfizer, Inc., 351 F. Supp. 2d 226 (S.D.N.Y. 2005).

In 2013, Rochon, a third generation girl scout herself, was appointed to be the first general counsel for the Girl Scouts of America, where she currently serves.

Overall Assessment

Coming from an in-house environment, Rochon would come to the bench with a slightly different background that most federal judges. Additionally, her affiliation with the Girl Scouts, an organization that is widely praised across the political spectrum, is also likely to garner Rochon bipartisan support for confirmation.

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Judge Sherilyn Peace Garnett – Nominee to the U.S. District Court for the Central District of California

U.S. District Judge Barry Moskowitz has had luck placing his clerks under the Biden Administration. After Judge Jinsook Ohta, Judge Sherilyn Garnett has now been nominated to the federal bench.

Background

The 52 year old Garnett attended the University of California Riverside, getting a B.A. with honors in 1991, She then received a J.D. from Harvard Law School in 1995.

After law school, Garnett joined the Chicago office of Altheimer & Gray as an associate before clerking for Judge Barry Moskowitz on the U.S. District Court for the Southern District of California. After a year at the Los Angeles Office of Arnold & Porter, Garnett became a federal prosecutor with the U.S. Attorney’s Office for the Central District of California.

In 2014, Governor Jerry Brown of California appointed Garnett to the Los Angeles County Superior Court. Garnett currently serves on the Court.

History of the Seat

Garnett has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on November 4, 2018 by Judge Manuel Real, who the last judge appointed by President Lyndon B. Johnson still serving in active status when he left the bench.

On August 28, 2019, President Trump nominated Rick Richmond, a longtime leader in the Federalist Society, to fill this vacancy. However, Richmond never received a hearing before the Senate Judiciary Committee, and the seat was left open at the end of the Trump Administration.

Legal Experience

Garnett spent the vast majority of her pre-bench legal career as a federal prosecutor. Among the matters she handled, Garnett prosecuted Dana Christian Welch, who was sentenced to 30 months of federal prison for shooting lasers into the cockpits of commercial airliners about to land, causing “flash blindness” in the pilots. See Press Release, Federal Bureau of Investigation, Los Angeles Field Office, Orange County Man Who Fired Lasers at Commercial Aircraft Sentenced to 2.5 Years in Federal Prison, Nov. 3, 2009. Garnett also prosecuted Billy Cottrell, a former Caltech graduate student convicted of participating in a conspiracy to firebomb over 130 vehicles as an act of ecoterrorism. See Nathan McIntire, Judge Orders Former Caltech Grad Student to Serve At Least 18 More Months in Federal Prison, Pasadena Star News, Nov. 16, 2009.

Judicial Experience

Since 2014, Garnett has served as a judge on the Los Angeles County Superior Court. In this role, Garnett presides over trial court matters in criminal, civil, family, and other state law matters.

Statements

While Garnett has been fairly reticent throughout her career, she was quoted in a number of articles during a 2013 government shutdown caused by a conflict between the Obama Administration and Congressional Republicans. See, e.g., Ian Lovett, Unable to Take Care of Business in L.A., N.Y. Times Blogs, Oct. 1, 2013. In the articles, Garnett was sharply critical of Congress for the burden they placed on government employees, calling their lack of action “really stupid.” See id.

Overall Assessment

As a state judge with a background as a prosecutor, Garnett could attract bipartisan support for confirmation. While some lawmakers may raise eyebrows with her willingness to call their actions “stupid”, it is unlikely that those comments will derail an otherwise smooth confirmation.

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Judge Sunshine Sykes – Nominee to the U.S. District Court for the Central District of California

The first native american judge on the California state bench, Judge Sunshine Sykes looks likely to break barriers on the federal bench as well.

Background

Born on the Navajo Nation Reservation in Arizona in 1974, Sykes attended Stanford University, getting a B.A. in 1997. She then received a J.D. from Stanford Law School in 2001.

After law school, Sykes joined California Indian Legal Services and then spent two years at the Southwest Justice Center and the California Department of Social Services. In 2005, Sykes joined the County Counsel’s Office in Riverside County.

In 2013, Governor Jerry Brown of California appointed Sykes to the Riverside County Superior Court. She currently serves on the Court.

History of the Seat

Sykes has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on March 3, 2020 by Judge James Selna. The Trump Administration did not nominate a candidate for this vacancy before the end of the Presidency.

Legal Experience

Sykes started her career working for California Indian Legal Services. She then spent two years with the Southwest Justice Center and the California Department of Social Services, where she served as an attorney for juvenile offenders. See County Attorney Appointed to Judicial Seat, City News Service, Dec. 5, 2013. See, e.g., Leland L. v. Superior Ct. of Riverside, 2004 Cal. App. Unpub. LEXIS 2871 (Mar. 30, 2004).

From 2005 to 2013, Sykes worked as Deputy County Counsel in Riverside County, working on writing ordinances, vetting documents, and representing the county in judicial proceedings.

During her time as County Counsel, Sykes saw her name in a discrimination suit, where the plaintiff alleged that his colleague responsible for the discrimination developed a dislike for him because he protested against an adulterous relationship she was engaged in with Sykes’ then-boyfriend. See Rodriguez v. Cal. Rural Legal Assistance, Inc., Case No. ED CV 13-958-JFW, 2014 WL 3900234 (C.D. Cal. June 30, 2014). The suit was ultimately dismissed by U.S. District Judge John Walter, after U.S. Magistrate Judge Sheri Pym found the affidavits involving the extra-marital relationship to be irrelevant. See id.

Judicial Experience

Since 2013, Sykes has served as a judge on the Riverside County Superior Court. In this role, Sykes presides over trial court matters in criminal, civil, family, and other state law matters. At the time of her appointment, Sykes was the first native american state court judge in California. See County Attorney Appointed to Judicial Seat, City News Service, Dec. 5, 2013.

Among her notable cases from the bench, Sykes presided over a suit against Monster Beverage Corp. by a man who accused the beverage of causing his heart attack. See Mike Curley, Appeals Court Upholds Verdict in Monster Heart Attack Case, Law 360, Mar. 26, 2021. Sykes bifurcated the trial between causation and damages, and the jury unanimously found for Monster, a verdict upheld on appeal. See id. Sykes also presided over a lawsuit brought by the families of three girls allegedly molested at Liberty Elementary School. See School District Settles Suit Arising From Alleged Sexual Abuse of Students, City News Service, Dec. 3, 2018. The suit ended in a $6.2 million settlement.

Statements

Sykes has spoken out on the need for greater diversity in the legal profession and, in particular, the prejudice she has faced for being Native American. See, e.g., Diverse Judges Share Paths to Bench, Advise Young Lawyers, U.S. Official News, Feb. 9, 2016. In a 2016 panel with the American Bar Association (moderated by U.S. District Judge J. Michelle Childs), Sykes noted that her re-election appointment had indicated that she was not qualified to be a judge because she was Native American. See id.

Overall Assessment

As a state judge with nearly a decade of experience and little controversy during her tenure, Sykes should have little trouble retaining the Democratic support she would need for confirmation.

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