Want Proof that Democrats Are Playing A Losing Game on Judges: Look to the States

Take two candidates for the bench: a forty year old attorney who has spent their career as a legal bombthrower, marching in protests and writing strong-worded blog and twitter posts; and a sixty year old partner at a top law firm who has donated generously to their home state senator but has otherwise undeveloped legal views.  It may be a cliche to say that the former is more likely to get nomination under a Republican Administration while the latter is under a Democratic Administration, but it’s a cliche that’s borne out by experience.  Just look at what’s happening now in state judiciaries across the country.

So far, in 2020, 18 vacancies have opened up in state supreme courts where the justices are appointed by the state’s governor.  Of those 18 vacancies, just six were in states appointed by Republican Governors, while 12 were in states appointed by Democrats.  Given this structural advantage in reshaping the state bench, you’d expect Democratic Administrations to work closely with progressive groups in picking young, liberal jurists to rebalance the bench.  The reality, however, is that, from a combination of a lack of resources and a lack of interest, Democrats at the state level are getting lapped by their Republican counterparts on judges.

To start, Republicans have been much quicker in their appointments.  Georgia Governor Brian Kemp appointed Judge Carla Wong McMillian to the Supreme Court less than a month after Justice Robert Benham’s retirement.  Similarly, Alaska Governor Mike Dunleavy and Iowa Governor Kim Reynolds made their appointments within a month of the respective vacancies opening.  In contrast, Maine Supreme Court Justice Leigh Sauffley stepped off the Court on April 14, 2020.  Governor Janet Mills still has yet to make an appointment three months later.  Similarly, Connecticut Governor Ned Lamont waited more than two months after the retirement of Justice Richard Palmer to make his appointment, despite the fact that Justice Palmer was forced to retire due to age and the vacancy was predicted years in advance.

Even where they have made appointments, the nominees are remarkably different.  For example, Justice McMillian, appointed by Kemp, is only 46.  Dunleavy’s appointment of Dario Borghesan is only 40.  Justice Matthew McDermott, appointed to the Iowa Supreme Court by Reynolds, is only 42.  All three also have been active in conservative legal circles.

In comparison, look at the judges appointed by Democratic Governors this year.  Gov. Jay Inslee’s appointees to the Washington Supreme Court were both in their 50s: Justice Raquel Montoya Lewis is 53, and Justice Helen Whitener is 55.  And they’re the young ones.  Justice Gordon Moore, appointed by Gov. Tim Walz to the Minnesota Supreme Court, is 57.  Justice Catherine Connors, appointed by Mills in Maine, is 61.  And Justice Andrew Horton, another Mills appointee, is seventy-one years old.  Similarly, in Connecticut, Lamont has chosen Judge Christine Keller for the Supreme Court, a particularly myopic appointment, given that the 67-year-old jurist will be required to step off the Supreme Court in three years, just in time for Lamont’s successor to replace her.

Even where Democratic Governors have sought to make bolder appointments, they’ve been stymied by conservative opposition and a lack of liberal support.  Take the case of Carl Folsom III, a forty-year-old Assistant Federal Public Defender who was tapped for the Kansas Court of Appeals by Gov. Laura Kelly.  Folsom’s nomination was rejected by the Kansas Senate, where opponents disingenuously argued that Folsom was a poor choice because he had represented an accused child molester.  Setting aside the fact that opponents should really be objecting to our Founding Fathers for codifying the Sixth Amendment, Folsom was a public defender and, as such, unable to select his clients.  Yet, as his nomination went down, there was virtually no outcry outside of Kansas.

This past week, the Democratic Party announced that it would be revising its party platform, adding a plank calling for “structural changes” to the judiciary.  Despite the vagueness of the change, it induced paroxyms of joy in many liberals, thrilled that Democrats were finally showing up to the gun fight with something more than a blade.  However, structural changes are meaningless if political actors lack the will to take advantage of them.  And watching Democrats let opportunity after opportunity to reshape the bench go by this year doesn’t raise confidence as to their performance next year.  Despite the occasional bright spot (e.g. the appointment of Justice Fabiana Pierre Lewis to the New Jersey Supreme Court by Gov. Phil Murphy), Democrats have overlooked opportunities to reshape state appellate courts with young liberals.  Liberals can only hope that a prospective President Biden doesn’t continue this pattern.

 

Fred Federici – Nominee to the U.S. District Court for the District of New Mexico

The federal courts along the U.S.-Mexico border are among the most overworked in the country.  This Las Cruces-based judgeship in the U.S. District Court for the District of New Mexico has been vacant since 2018, after an attempt to fill it in 2019 failed.  Now, the White House is trying again with apolitical attorney Fred Federici.

Background

Fred Joseph Federici III was born in Raleigh, North Carolina in 1965.  Federici attended the College of William and Mary,, graduating in 1988.[1]  He moved immediately to the University of Virginia School of Law, getting his J.D. in 1991.

After graduation, Federici spent four year with the Washington D.C. office of Venable, Baetjer, Howard & Civiletti.  In 1995, Federici became a federal prosecutor in New Mexico, where he has served since.[2]  He has served as First Assistant (the second in command role) in the office since 2018.  

In 2010, Federici was one of 11 candidates interviewed by New Mexico’s Democratic Senators for consideration to be U.S. Attorney for the District of New Mexico in the Obama Administration.[3]  However, Federici’s colleague Kenneth Gonzalez was nominated for the position instead.  Gonzalez later went on to become a federal district judge for the District of New Mexico.

In 2017, Federici was recommended by Udall and Heinrich to be U.S. Attorney for the District of New Mexico, but John C. Anderson was nominated instead.

History of the Seat

Federici has been nominated for a seat on the U.S. District Court for the District of New Mexico.  This seat opened on July 25, 2018, when Judge Robert Brack moved to senior status.  In May 2018, New Mexico’s Democratic Senators sent four candidates for the vacancy to the White House.[4]  In June 2019, the White House nominated Judge Kevin Sweazea, a U.S. Magistrate Judge in the District of New Mexico, to fill the vacancy.  However, by November, the Senators had withdrawn their support for Judge Sweazea’s candidacy, and he withdrew his name from consideration.[5]

In June 2019, Federici reached out to New Mexico Senators Tom Udall and Martin Heinrich to express his interest in a federal judgeship.[6]  In April 2020, Udall and Heinrich jointly recommended Federici’s name to the White House for the judgeship.[7]  Federici interviewed with the White House on April 8 2020 and was selected as a nominee on April 23, 2020.[8]  Federici was nominated on June 18, 2020.

Legal Career

Federici started his legal career as an Associate at Venable, Baetjer, Howard & Civiletti, where he practiced civil litigation.  However, the vast majority of his career has been as a federal prosecutor.  At the U.S. Attorney’s Office for the District of New Mexico, Federici worked on a variety of criminal cases, including drug, white collar, and national security cases.[9]  Over his career, Federici has tried twelve cases before a jury.

In his most notable prosecution, Federici led the case against Los Alamos scientist Pedro Mascheroni, who had offered to build nuclear bombs for Venezuela.[10]  Mascheroni ended up pleading guilty to passing classified information to a federal agent posing as a Venezuelan official.[11] 

In another notable cases, Federici prosecuted Jamie Estrada, the former campaign manager of New Mexico Governor Susana Martinez, for hacking into and stealing the Governor’s emails.[12]  Estrada received a nine-month sentence for the offense.[13] 

Overall Assessment

Strongly considered for nomination under both the Obama and Trump Administrations, Federici appears to be a fairly mainstream choice for the bench. However, as we are already in August of an election year, it remains unclear whether the Senate will process Federici’s nomination in the time it has left.


[1] Sen. Comm. on the Judiciary, 116th Cong., Fred J. Federici: Questionnaire for Judicial Nominees 1.

[2] See SANTA FE, Governor Appoints Federici to Seventh District, Associated Press State & Local Wire, Feb. 23, 2001.

[3] See Joe Monahan, NM Senators Refuse to Release Names of US Attorney Candidates, New Mexico Politics with Joe Monahan, Jan. 21, 2010, http://joemonahansnewmexico.blogspot.com/2010/01/nm-senators-refuse-to-release-names-of.html.  

[4] See Press Release, Office of Sen. Tom Udall, Udall, Heinrich, Pearce Recommend Candidates to Fill Two Vacancies on U.S. District Court (May 2, 2018).

[5] See Mike Gallagher, Judge Kevin Sweazea Withdraws Name From Consideration for Federal Job in Las Cruces, Las Cruces Sun News, Nov. 1, 2019, https://www.lcsun-news.com/story/news/local/new-mexico/2019/11/01/judge-kevin-sweazea-withdraws-name-consideration-federal-job/2496662001/.  

[6] See Federici, supra n. 1 at 20.

[7] See id.

[8] Id. at 20-21.

[9] See id. at 10.

[10] See Russell Contreras, Tape: Scientist Offers to Build Nuke Bomb Targeting New York, A.P. State & Local, Jan. 29, 2015.

[11] United States v. Mascheroni, et al., 612 F. App’x 504 (10th Cir. June 1, 2015).

[12] Rob Nikolewski, Miffed Aide Who Hacked into NM Governor’s Emails Gets 9-Month Sentence, New Mexico Watchdog, Oct. 9, 2014.

[13] See id.

Judge Roderick Young – Nominee to the U.S. District Court for the Eastern District of Virginia

A former federal prosecutor and U.S. Magistrate Judge, Judge Roderick Young is Trump’s latest nominee to the U.S. District Court for the Eastern District of Virginia.

Background

A native Virginian, Roderick Charles Young was born in the majority-black city of Petersburg in 1966.  He received a B.A. from George Mason University in 1989 and then got a J.D. from West Virginia University College of Law in 1994.[1] 

After graduation, Young worked for two years in temporary legal work before becoming an Assistant Public Defender in Portsmouth.[2]  In 1998, Young became an Assistant Commonwealth’s Attorney for the City of Richmond.[3]  In 2002, Young became a federal prosecutor with the U.S. Attorney’s Office for the Eastern District of Virginia, where he became Deputy Criminal Supervisor in 2012.

In 2014, Young was appointed as a U.S. Magistrate Judge in the Richmond Division of the U.S. District Court for the Eastern District of Virginia.  He continues to serve there today.

History of the Seat

Young has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia.  This seat opened on August 1, 2019, when Judge Rebecca Beach Smith moved to senior status.  While recommending Young and fellow U.S. Magistrate Judge Douglas Miller for the vacancy, Virginia Senators Mark Warner and Tim Kaine, both Democrats, suggested that Smith’s replacement come from the Newport News Division of the court.[4]  Nonetheless, the White House chose the Richmond-based Young over the Peninsula-based Miller on May 6, 2020.

Legal Experience

While Young started his career doing temporary legal work, his first substantive role was in the Portsmouth Public Defenders’ Office.  Young then switched to the Commonwealth Attorney’s Office in Richmond, prosecuting felonies and misdemeanors in the City of Richmond.  Notably, while a prosecutor there, Young prosecuted and secured a conviction against John Matthew Grant Jr. for the shooting death of Shawn Battle.[5] 

From 2002 to 2014, Young was a federal prosecutor in the U.S. Attorney’s Office for the Eastern District of Virginia, where he focused on federal capital cases, organized crime, violent crime, and narcotics prosecutions.  Notably, Young prosecuted MS-13 leader Jose Bran, securing a term of life in prison against him.[6]

Jurisprudence

Young has served as a U.S. Magistrate Judge since 2014.  In this capacity, Young oversees discovery, adjudicates cases where jurisdiction is consented to, and presides over settlement.  In his time as a magistrate, Young has presided over 4 bench trials, and one full jury trial.  Notably, Young has presided over a number of civil rights cases, including obtaining successful settlements in a number of suits involving prisoners and police officers.[7]

Over his six years on the bench, Young’s rulings have been partially reversed by higher courts eight times.  Notably, one of those reversals was in Deutsch Bank Nat’l Tr. Co. v. Fegely, in which Young ruled that the defendant’s answer to the plaintiff’s pleadings was insufficient and that the plaintiff was entitled to judgment on the pleadings.[8]  The Fourth Circuit reversed, finding that the answer had denied factual allegations in the complaint, and that this was enough to defeat judgment on the pleadings.[9]

Overall Assessment

Given that Young has already been recommended by Virginia’s Democratic Senators and the White House, the biggest obstacle of his confirmation is the upcoming election and the rapidly shrinking Senate calendar.  At this point, while it’s an even money shot whether the Senate will process Young’s nomination, there are few substantive barriers to his confirmation.


[1] Sen. Comm. on the Judiciary, 116th Cong., Roderick C. Young Jr.: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. 

[4] Press Release, Office of Sen. Tim Kaine, Warner & Kaine Announce Eastern District of Virginia Judicial Recommendations (March 20, 2020) (available at https://www.kaine.senate.gov/press-releases/03/20/2020/warner-and-kaine-announce-eastern-district-of-virginia-judicial-recommendations).

[5] See Alan Cooper, 85 Years Given in Shooting; Man Has Addiction to Guns, Judge Says, Richmond Times Dispatch, Apr. 28, 1999.

[6] See United States v. Jose Bran et al., 776 F.3d 276 (4th Cir. 2015).

[7] See Canady v. Clarke et al., Civil Action No. 3:14CV420 (E.D. Va.); Howard v. Hunter, Civil Action No. 3:15CV461 (E.D. Va.); Quarles v. City of Colonial Heights et al., Civil Action No. 3:18CV593 (E.D. Va.).

[8] See 2018 WL 4524104 (E.D. va. July 11, 2018).

[9] See 767 F. App’x 582 (4th Cir. 2019).

Toby Crouse – Nominee to the U.S. District Court for the District of Kansas

Toby Crouse currently serves as Kansas Solicitor General, in charge of defending Kansas’ laws and regulations in state and federal court.  His experience in this role prepares him well for a career as a federal judge.

Background

Toby Crouse received his Bachelor of Arts from Kansas State University and then his J.D. from the University of Kansas School of Law.  Crouse then clerked on the U.S. District Court for the District of Kansas for Judge Monti Belot and then on the U.S. Court of Appeals for the Tenth Circuit for Judge Mary Beck Briscoe.

After his clerkships, Crouse joined the firm of Foulston Siefkin in their Overland Park office.[1]  In 2018, Crouse was tapped to replace Kansas Solicitor General Stephen McAllister (who became U.S. Attorney).[2]  Crouse currently serves in that capacity.

History of the Seat

Crouse has been nominated for a vacancy on the U.S. District Court for the District of Kansas.  This vacancy opened when Judge Carlos Murguia resigned on April 1, 2020.  Murguia’s resignation was prompted by his reprimand from the Judicial Council of the 10th Circuit Court of Appeals, which found that he had sexually harassed court employees, among committing other acts of misconduct.[3]

Legal Experience

Crouse has extensive experience in litigation, both in his time at Foulston Siefkin and his time litigating as Kansas Solicitor General.

Foulston Siefkin

As an attorney at Foulston Siefkin, Crouse worked primarily in civil litigation, frequently defending municipalities and employers against civil rights and discrimination allegations.  In one case, Crouse represented the Geary County Sheriff’s Department against allegations of harassment of discrimination made by former employees.[4]  The suit ended in a settlement of the plaintiffs’ claiims.[5]  In another case, Crouse successfully pushed for the dismissal of a suit filed by a Sheriff fired for refusing to end the investigation into a man facing sex crime charges.[6]

Notably, Crouse was hired by the Republican legislature to gather evidence and present evidence before the Kansas Supreme Court in a lawsuit alleging disproportionate allocation of school funding.[7]  The suit had threatened to upend Kansas’ system for school funding after a 2010 ruling of the Kansas Supreme Court.[8]

Kansas Solicitor General

Since 2018, Crouse has served as Solicitor General for Kansas, where he has represented the State before state and federal courts.  Notably, Crouse argued two cases before the U.S. Supreme Court in the 2019-20 calendar, winning both.  In Kansas v. Glover, Crouse won a 8-1 victory in persuading the Court that it was reasonable for officers to assume that the owner of a vehicle was also the driver for Fourth Amendment purposes.[9]  In Kahler v. Kansas, Crouse similarly got a 6-3 majority to agree with his position that Kansas can abolish the insanity test in criminal prosecutions without violating the Constitution.[10]

In other cases, Crouse has defended Kansas’ school funding system before the Kansas Supreme Court,[11] and unsuccessfully argued that Kansas’ voting law, which requires proof of citizenship, is not preempted by federal regulations.[12] 

Overall Assessment

As an established attorney with extensive experience litigating in both state and federal court, Crouse certainly has the base level of experience to be a federal judge.  While he may face some opposition for his embrace of conservative legal positions as Solicitor General, such objections are unlikely to derail Crouse’s nomination.


[1] Press Release, Office of the Kansas Attorney General, AG Derek Schmidt Names Toby Crouse to Serve as Kansas Solicitor General (Jan. 26, 2018) (on file at https://ag.ks.gov/media-center/news-releases/2018/01/26/ag-derek-schmidt-names-toby-crouse-to-serve-as-kansas-solicitor-general).

[2] See id.

[3] Arianne De Vogue and Caroline Kelly, Kansas Federal Judge Resigns After Sexual Misconduct Allegations, CNN.com, Feb. 18, 2020, https://www.cnn.com/2020/02/18/politics/kansas-federal-judge-murguia-resigns-sexual-misconduct/index.html.

[4] See Judge Grants Extension in Discrimination Case Against GESO, Junction City Daily Union, Sept. 29, 2015.

[5] See Resolution Reached in Discrimination Lawsuit, Junction City Daily Union, Feb. 16, 2016.

[6] See Lawsuit Alleging Sheriff Wrongfully Fired Detective Tossed, A.P. State & Local, Apr. 6, 2017.

[7] Top Kansas Lawmakers Hire Lawyer For School Funding Lawsuit, A.P. State & Local, Mar. 10, 2016.

[8] John Hanna, Kansas School Aid Debate Raises Tough Issues for Lawmakers, A.P. State & Local, Mar. 21, 2016.

[9] Kansas v. Glover, 589 U.S. __ (2020).

[10] Kahler v. Kansas, 589 U.S. __ (2020).

[11] John Hanna, Kansas Justices Express Doubt About School Funding Hike, A.P., May 22, 2018

[12] See also Lindsay Whitehurst, Kansas Hopes to Resurrect Proof-of-Citizenship Voting Law, A.P., Mar. 18, 2019.

Iris Lan – Nominee to the U.S. District Court for the Southern District of New York

Iris Lan, nominated for a seat on the U.S. District Court for the Southern District of New York, brings a strong academic background and extensive governmental experience to the position.

Background

The daughter of two professors, Iris Lan grew up in Manhattan, graduating from Stuyvesant High School in 1995.[1]  Lan received her undergraduate degree from Harvard University and then entered a joint J.D.-PhD program at Harvard Law School, graduating in 2003.[2]

After graduating, Lan clerked for Judge William Bryson on the U.S. Court of Appeals for the Federal Circuit.  Lan then joined the U.S. Attorney’s Office for the Southern District of New York.  Lan also worked at the Department of Justice, becoming an Attorney Advisor in the Office of Legal Counsel.  During the Obama Administration, Lan served as Associate Deputy Attorney General and as Counsel to the Assistant Attorney General in the National Security Division.[3]  Lan is currently on detail from the U.S. Attorney’s Office for the Southern District of New York, serving with the Office of the Deputy Attorney General.

History of the Seat

Lan has been tapped for a seat on the U.S. District Court for the Southern District of New York to a seat vacated by Judge Katherine Forrest, who resigned from the Southern District on September 11, 2018.  Lan was originally nominated for the seat on December 2, 2019 and renominated on May 4, 2020.

Legal Career

During her time with the Department of Justice and the U.S. Attorney’s Office, Lan has worked on a number of prominent criminal cases.  For example, early in her career, Lan worked on child pornography prosecutions under Operation Predator, an Immigration and Customs Enforcement (ICE) program to target pornographers and child traffickers.[4]  Lan also prosecuted Manuel Felipe Salazar-Espinosa, a drug kingpin charged with smuggling $100 million in cocaine.[5]

Among other matters, Lan prosecuted spy Ben Ami-Kadish for leaking military secrets to Israel,[6] and prosecuted terrorists for bombing U.S. embassies in East Africa.[7]

Writings

Lan hasn’t been particularly prolific as a legal writer, but did write a number of commentary pieces as a law student in the field of health law.  For example, Lan authored a number of pieces discussing developments in the field of health law.[8]  These articles were generally descriptive, although with some commentary.  For example, in one piece, Lan tentatively supports a Mississippi Supreme Court decision allowing liability for potentially exposing a patient to HIV, even where transmission is not proven.[9]

Overall Assessment

Given her credentials and extensive experience in litigation, Lan is qualified for a seat on the federal bench.  That being said, she is up against a ticking clock to the Presidential election.  Even if she maintains the support of her home-state senators, Republicans may choose to prioritize more conservative picks.


[1] Abby Y. Fung, Renaissance Woman Keeps On Runnin’, Harvard Crimson, June 10, 1999, https://www.thecrimson.com/article/1999/6/10/renaissance-woman-keeps-on-runnin-piris/.

[2] See id.

[4] See, e.g., Press Release, U.S. Department of Homeland Security Office of Immigration and Customs Enforcement, Ex-CEO Pleads Guilty to Possession of Child Pornography, Obstruction of Justice, Aug. 4, 2006.

[5] Larry Neumeister, Lawyer Tells New York Jury Her Client Dealt Drugs But Not to US, A.P. State & Local Wire, June 11, 2007.

[6] Bruce Golding, Wrist Slap for Old Spy, N.Y. Post, May 30, 2009.

[7] See In re Terrorist Bombings of U.S. Embassies in E. Afr. v. Odeh, 552 F.3d 93 (Dec. 10, 2007).

[8] See, e.g., Iris Lan, COURT DECISION: Recent Developments in Health Law: American Journal of Law & Medicine and Harvard Law & Health Care Society: Pharmaceuticals: Conspiracy to Increase Ritalin Profits Alleged, 29 J.L. Med. & Ethics 100 (Spring 2001); Iris Lan, REGULAR FEATURE: Recent Developments in Health Law: American Journal of Law & Medicine and Harvard Law & Health Care Society: ADA: U.S. Supreme Court to Address Whether Carpal Tunnel Constitutes a Disability, 29 J.L. Med. & Ethics 407 (Fall/Winter 2001); Iris Lan, Recent Developments in Health Law: American Journal of Law & Medicine and Harvard Law & Health Care Society: AIDS: Mississippi Supreme Court Adopts New Standard for Fear of Exposure to AIDS, 28 J.L. Med. & Ethics 94 (Spring 2000).

[9] See Iris Lan, Recent Developments in Health Law: American Journal of Law & Medicine and Harvard Law & Health Care Society: AIDS: Mississippi Supreme Court Adopts New Standard for Fear of Exposure to AIDS, 28 J.L. Med. & Ethics 94, 95 (Spring 2000).

Dirk Paloutzian – Nominee to the U.S. District Court for the Eastern District of California

The Eastern District of California is known for being 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.  As such, the nomination of Dirk Paloutzian, a business attorney from Fresno, is likely to be welcome news for the judges on the court.

Background

Dirk Paloutzian was born in Fresno County, California on April 6, 1969.  Paloutzian attended the University of California at Berkeley, getting a B.A. in 1991.[1]  He then received a J.D. from the University of California Davis King Hall School of Law in 1994.[2]

Paloutzian served as an extern for Justice Marvin Baxter on the California Supreme Court and then became a Deputy District Attorney for the County of Fresno.[3]  In2 002, Paloutzian joined Baker Manock & Jensen in Fresno, where he currently serves as a Partner.

History of the Seat

Paloutzian 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.  Paloutzian’s nomination was announced on April 29, 2020, although he was not officially nominated until May 21, 2020.

Legal Experience

Paloutzian started his legal career at the firm of McCormick Barstow LLP, before spending five years as a prosecutor with the County of Fresno.  As a prosecutor, Paloutzian worked on a variety of criminal matters, including sexual assault, homicide and gang prosecutions.[4]  In 2000, Paloutzian became the county’s first elder abuse prosecutor, where he focused solely on prosecuting elder abuse cases.[5] 

Since 2002, Paloutzian has been handling business and commercial litigation at Baker Manock & Jensen in Fresno.  Among the more notable cases he has handled with the firm, Paloutzian represented dairy farms in Hawaii being sued for violations of federal water pollution laws.[6]  Paloutzian also represented psychiatrist Dwight Sievert, who was sued for damages after releasing Edward Coburn from psychiatric detention (Coburn went on to have a violent outburst directed at his father on an airplane).[7]  After a trial court judge found that Sievert was immune from damages in the suit, a panel of the court of appeals affirmed.[8]

Overall Assessment

With a Republican controlled Senate, Paloutzian’s biggest obstacle to confirmation (other than the election clock) is the return of blue slips by California’s Democratic senators.  As Paloutzian is a relatively uncontroversial nominee, it is likely that he will not be opposed by the senators.  Whether the Senate chooses to take up the nomination in the short calendar left is another story.


[1] See Baker, Manock & Jensen P.C., Dirk B. Paloutzian, https://www.bakermanock.com/attorney/dirk-b-paloutzian (last visited Jun. 3, 2020).

[2] See id.

[3] Id.

[4] Id.

[5] See id.

[6] Friends of Maha’Ulepu, Inc. v. Hawai’i Dairy Farms, LLC., 224 F. Supp. 3d 1094 (D. Haw. 2016).

[7] See Coburn v. Sievert, 133 Cal. App. 4th 1483 (2005).

[8] See id.

Aileen Cannon – Nominee to the U.S. District Court for the Southern District of Florida

39-year-old AUSA Aileen Cannon is President Trump’s fifth nominee to the U.S. District Court for the Southern District of Florida, and would be the first woman to join the court under his tenure as President.

Background

Aileen Cannon received her B.A. in Public Policy Studies from Duke University in 2003 and her J.D. magna cum laude from the University of Michigan Law School in 2007.  In between undergraduate and law school, Cannon spent two years as a paralegal with the Civil Rights Division at the U.S. Department of Justice.  After receiving her J.D., Cannon clerked for Judge Steven Colloton on the U.S. Court of Appeals for the Eighth Circuit.

After finishing her clerkship, Cannon became an associate with Gibson Dunn & Crutcher LLP.  In 2013, she became a federal prosecutor with the U.S. Attorney’s Office for the Southern District of Florida, where she continues to work there to this day.

History of the Seat

Cannon has been nominated for a vacancy on the U.S. District Court for the Southern District of Florida.  This seat opened when Judge Kenneth Marra moved to senior status on August 1, 2017.  

Legal Experience

Cannon’s legal career can be divided into two primary segments: working as an associate at Gibson Dunn, and being a federal prosecutor.  In the former role, Cannon primarily practiced civil litigation.  However, in the latter capacity, Cannon developed most of her legal experience, working with the Major Crimes division on criminal prosecutions and appeals.  Among her more prominent cases, Cannon prosecuted perpetrators of identity thefts who were rampant throughout Southern Florida.[1] 

Cannon currently works with the appellate division of the U.S. Attorney’s Office.  Among the more prominent appeals, Cannon has argued successfully that evidence obtained against a defendant through a wiretap was consistent with the Fourth Amendment.[2]  Cannon has also been called upon to defend sentencing decisions made by U.S. District Court judges, including decisions which have been reversed by the Eleventh Circuit.[3]

Overall Assessment

As of this point, the Trump Administration has made an art form of finding attorneys who barely squeeze in under the twelve year practice requirement that the American Bar Association seeks for judges. Cannon, while still under forty, has practiced for approximately twelve years (including her clerkship) and has experience with civil and criminal litigation.  As there are few controversies in her background, she will likely be confirmed comfortably for the federal bench, and will be a prime candidate to fill a Florida vacancy on the Eleventh Circuit in the future.


[1] See Press Release, Office of the U.S. Attorney, Southern District of Florida, Defendants Charged in Separate Fraud Schemes That Resulted in Thousands of Identities Stolen and Used to Commit Fraud Crimes, US Fed News, Apr. 9, 2015.

[2] See United States v. Maxi, 886 F.3d 1318 (11th Cir. 2018).

[3] See, e.g., United States v. McCloud, 818 F.3d 591 (11th Cir. 2016) (reversing sentencing for treating prior armed robbery convictions as separate offenses under the Armed Career Criminal Act).  See also United States v. Charles, 757 F.3d 1222 (11th Cir. 2014) (reversing application of sentencing enhancement to increase sentence).

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

The relationship between New York’s Democratic senators and the Trump Administration has often been tense and combative.  This has occasionally manifested itself in conflicts over New York’s federal bench.  However, the nomination of Jennifer Rearden should be a point of agreement from all sides.

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

Reardon 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.

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]

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.[9]  She has similarly expounded on a similar decision by Judge Shira Scheindlin on production of metadata during discovery.[10] 

Overall Assessment

With both the Trump Administration and New York Democrats behind her candidacy, Rearden is likely to sail through the confirmation process.  Barring objections from Republican senators, Rearden is likely to be confirmed comfortably.


[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] 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.  

[10] 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.

Saritha Komatireddy – Nominee to the U.S. District Court for the Eastern District of New York

A prominent federal prosecutor and former clerk to Justice Brett Kavanaugh (on the D.C. Circuit), Saritha Komatireddy would (if she lapped current nominee Diane Gujarati) be the first Indian American judge on the Eastern District and the first Telugu American judge on the federal bench.[1]

Background

Saritha Komatireddy grew up in Missouri, the daughter of doctors who had immigrated from Telangana in India, making her the first nominee from a Telugu background.[2]  As a child, Komatireddy was honored as a Presidential Scholar in 2001.[3]  Komatireddy attended Harvard University and Harvard Law School, getting her J.D. Magna Cum Laude in 2009.  Komatireddy then clerked for then-Judge Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit.  After her clerkship, Komatireddy spent a year as Counsel for the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling.

In 2011, Komatireddy became an Associate at Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC.  In 2013, she was hired by U.S. Attorney Loretta Lynch (later the U.S. Attorney General) as an Assistant U.S. Attorney.  Komatireddy currently works in that office as Deputy Chief of General Crimes.  

History of the Seat

Komatireddy has been nominated for a seat on the U.S. District Court for the Eastern District of New York.  While she has not been officially submitted to the Senate yet, she will likely fill the seat vacated by Judge Joseph Bianco’s elevation to the Second Circuit, which is the longest pending vacancy on the Eastern District without a nominee, having opened in May 17, 2019.

Legal Experience

While Komatireddy has held a few different legal positions, her most prominent role has been as a federal prosecutor.  In the U.S. Attorney’s Office for the Southern District of New York, Komatireddy has prosecuted a number of challenging and complex cases, including pornography and terrorism.

For example, Komatireddy prosecuted Roy Naim, an immigration activist featured in Time magazine, for child pornography charges.[4]  Naim ended up with a 15 year sentence from Judge Nicholas Garaufis.[5]  In another case, Komatireddy prosecuted Phil Kenner for defrauding NHL players and other investors in a vast criminal enterprise.[6] 

Komatireddy’s most notable cases, however, involved the prosecutions of individuals for terrorism-related charges.  For example, Komatireddy secured a 16 year sentence against Agron Hasbajrami for attempting to join radical terrorist groups in Pakistan.[7]  Komatireddy also tried Muhanad Mahmoud Al Farekh, a U.S. citizen charged with involvement in attacks on U.S. bases in Afghanistan.[8]  Al Farekh was convicted and sentenced to 45 years in prison.  More recently, Komatireddy is prosecuting Ruslan Maratovich Asainov, who is alleged to be a sniper for ISIS, and who threatened to commit acts of terror if allowed to be free on bond.[9]

Additionally, Komatireddy was involved in a legal battle over Apple’s refusal to provide backdoors to the federal government to bypass password protections for their iPhones.[10]  The issue arose after Apple refused to unlock the iPhone of a defendant charged with drug distribution, leaving Komatireddy “clearly stunned.”[11]  Ultimately, a judge sided with Apple, arguing that the federal government could not compel the disclosure.[12] 

Writings

As a law student, Komatireddy authored an article discussing the recent Supreme Court case, Bell Atlantic Corp. v. Twombly.[13]  The article critiques the decision, noting that it dramatically changes previous standards on pleading, and “seems to have created a more stringent pleading standard.”[14]  The Supreme Court later affirmed this reading of Twombly in Ashcroft v. Iqbal, expressly laying out a stricter pleading standard.[15] 

In other matters, Komatireddy wrote in support of Justice Brett Kavanaugh’s Supreme Court nomination, joining a letter by former Kavanaugh clerks praising the Justice.[16]  In another statement, Komatireddy described Kavanaugh as a man with “fundamental respect for the law and a complete commitment to getting it right.”[17]  Notably, unlike fellow appointees Justin Walker and Sarah Pitlyk, Komatireddy did not make public statements in relation to the sexual assault allegations made by Prof. Christine Blasey Ford.

Overall Assessment

For the most part, assuming she keeps the support of Sens. Schumer and Gillibrand, Komatireddy will be confirmed comfortably.  If she faces any issues in the confirmation process, it’d likely be from two sources.  The first would be from opponents of Justice Kavanaugh who would object to her praise of his nomination.  The second would be from civil libertarians who object to Komatireddy’s role in seeking backdoor access to iPhones.  From her supporters, both arguments have viable counters: Komatireddy did not address Dr. Ford’s testimony and only praised Kavanaugh for his role as a D.C. Circuit judge; and Komatireddy has not the decisionmaker behind the “backdoor” program but merely sought to use a legal mechanism that Apple had acquiesced to in 70+ cases to assist in prosecutions.  Assuming such explanations carry the day, Komatireddy should expect confirmation before the end of the year.


[1] The Telugu American community, consisting of immigrants from the Telangana and Andhra Pradesh states in India, make up half a million in the U.S., including the author of this article.

[2] See Lawyer with Telangana Roots Posted as Judge in US District Court, Times of India, Feb. 23, 2020.

[3] Three Missouri Students Named as Presidential Scholars, A.P. State & Local Wire, May 16, 2001.

[4] See Ryan Gorman, Roy Naim, the ‘Jewish Face of the Immigration Reform Struggle’ Featured in Time Magazine, Arrested on Child Porn Charges and Denied Bail, MailOnline, Sept. 21, 2013.

[5] See John Marzulli, Time for Jail Cover Guy Gets 15 Years – Preyed on Cancer Kid, N.Y. Daily News, May 19, 2016.

[6] Michael O’Keeffe, Alleged Con Man Takes the Stand, Says NHLers, Others Got Testimony Wrong, N.Y. Daily News, June 18, 2015. 

[7] Press Release, Department of Justice, Albanian National Sentenced to 16 Years’ Imprisonment for Attempting to Support Terrorism, US Official News, Aug. 19, 2015.

[8] Tom Hays, Jury Hears Openings at Trial of American Terror Suspect, A.P. State & Local, Sept. 12, 2017.

[9] See Ruth Weissmann, NY ‘ISIS’: Free Me At Your Peril, N.Y. Post, Sept. 12, 2019.

[10] See Todd C. Frankel, Ellen Nakashima, Showdown over iPhone Reignites Privacy Debate, Wash. Post, Feb. 21, 2016.

[11] See id.

[12] Katie Benner and Joseph Goldstein, Judge Rules for Apple in New York iPhone Case, N.Y. Times, Mar. 1, 2016.

[13] Saritha Komatireddy Tice, A ‘Plausible’ Explanation of Pleading Standards: Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), 31 Harv. J.L.  & Pub. Pol’y 827 (Spring 2008).

[14] Id. at 832.

[15] See Ashcroft v. Iqbal, 556 U.S. 662 (2009).

[16] See Press Release, Office of Sen. Charles Grassley, Judge Kavanaugh Clerks Laud Nomination to Supreme Court, July 11, 2018.

[17] Press Release, Office of the Press Secretary, White House, The Legal Community is Giving Rave Reviews to Judge Brett Kavanaugh’s Nomination to the Supreme Court, July 12, 2018.

Judge Sandy Leal – Nominee to the U.S. District Court for the Central District of California

Judge Sandy Leal currently serves on the Orange County Superior Court.  While Leal’s experience on the bench is fairly brief, she has extensive experience as a federal prosecutor.

Background

Sandy Nunes Leal was born in Longview Washington in 1972.  Leal got an B.A. from the University of Washington in 1995, and a J.D. from Boston College Law School in 1989.[1]  After graduating, Leal joined the Immigration and Naturalization Service as an assistant district counsel.[2] 

In 2004, Leal joined the U.S. Attorney’s Office for the Central District of California as a federal prosecutor.  She stayed with the Office until her appointment to the bench.

In 2018, Leal was named by Gov. Jerry Brown to the Orange Superior Court, where she currently serves.[3] 

History of the Seat

Leal has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on November 23, 2016 by Judge Christina Snyder.

In February 2019, Leal was contacted by the White House Counsel’s Office to gauge her interest in a federal judgeship.[4]  After interviews with the Judicial Advisory Commission set up by Senators Feinstein and Harris, Leal was nominated on October 17, 2019.

Legal Experience

For the first few years of her career, Leal worked for INS, where she appeared in immigration court on removal proceedings, asylum hearings, and appeals.[5]  From 2004 to 2018, Leal has worked as a federal prosecutor, where she worked primarily on immigration and human trafficking matters.

As a federal prosecutor, Leal prosecuted Robert Ornelas, an Orange County teacher, who traveled to the Philippines to engage in sexual conduct with minors and produce child pornography.[6]  Ornelas was tried and convicted by a jury and was sentenced by Judge Cormac Carney to 190 years in prison.[7]  Leal also prosecuted Roshaun (“Kevin”) Nakia Porter for trafficking victims to engage in commercial sex acts.[8] 

Jurisprudence

Since 2018, Leal has served as a judge on the Orange County Superior Court.  In this role, Leal presides over trial court matters in criminal, civil, family, and other state law matters.  By her estimation, Leal has not authored any opinions during her tenure on the bench.[9]  Among the cases that Leal has presided over, they are primarily cases of family and domestic law, including petitions for dissolution,[10] request for restraining orders,[11] and child custody orders.[12]

Overall Assessment

Despite, or perhaps because of, her limited judicial record, there is little in Leal’s background that should cause trouble through the confirmation process.  When confirmed, she would be a fairly middle of the road judge on the Central District.


[1] Sen. Comm. on the Judiciary, 116th Cong., Sandy Nunes Leal: Questionnaire for Judicial Nominees 1.

[2] See Press Release, Office of Gov. Edmund G. Brown, Brown Names Aide, Five Others to Superior Courts, Dec. 18, 2018 (available at http://www.metnews.com/articles/2018/appt121818.htm).  

[3] See id. 

[4] See Leal, supra n. 1 at 26.

[5] See id. at 15.

[6] Press Release, Justice Department, Former Orange County Teacher in Sex Tourism Case Found Guilty of Traveling to Phillipines to Molest Young Girls and Filiming the Abuse, (Nov. 18, 2016).

[7] See United States v. Ornelas, SA CR 14-183-CJC (C.D. Cal.).

[8] See United States v. Porter, SA CR 12-97-JLS (C.D. Cal.).

[9] See Leal, supra n. 1 at 7.

[10] See, e.g., Campbell v. Campbell, No. 16D001563 (O.C. Sup. Ct.).

[11] See, e.g., Y.A. v. O.T., No. 19P000051 (O.C. Sup. Ct.).

[12] See, e.g., C.D. v. G.D., No.18D006591 (O.C. Sup. Ct.).