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

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

Background

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

History of the Seat

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

Legal Experience

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

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

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

Statements and Writings

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

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

Overall Assessment

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

Judge Alison Nathan – Nominee to the U.S. Court of Appeals for the Second Circuit

In addition to presiding over many high profile cases in her current post on the Southern District of New York, Judge Alison Nathan has a distinguished background, tailor-made for elevation to the Second Circuit.

Background

Born Alison Julie Nathan on June 18, 1972 in Philadelphia, Nathan received her B.A. from Cornell University in 1994 and then spent a couple of years working in Japan and Thailand before getting a J.D. from Cornell Law School in 2000. After graduating, Nathan clerked for Judge Betty Binns Fletcher on the U.S. Court of Appeals for the Ninth Circuit and for Justice John Paul Stevens on the U.S. Supreme Court, as part of a clerk class that year produced five other federal judges: D.C. Circuit Judge Neomi Rao; Fifth Circuit Judge Gregg Costa; Ninth Circuit Judge Michelle Friedland; Northern District of California Judge Vince Chhabria; and Former Court of Appeals for the Armed Forces Judge Margaret Ryan.

After her clerkships, Nathan spent four years at Wilmer Cutler Pickering Hale & Dorr LLP before joining Fordham University School of Law as a professor. In 2008, she shifted to New York University School of Law.

After the election of President Obama, Nathan spent a year as Special Assistant to the President and Associate White House Counsel before joining the New York Solicitor General’s Office.

On March 31, 2011, Obama nominated Nathan to be a judge on the U.S. District Court for the Southern District of New York, filling the seat opened by Judge Sidney Stein’s move to senior status. Despite bipartisan support out of the Senate Judiciary Committee, Senate Republicans were cognizant of the likelihood that Nathan would be elevated and unanimously opposed her, leading to a squeaker 48-44 confirmation on October 13, 2011. Nathan currently serves on the Southern District.

History of the Seat

Nathan has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit. This seat will be vacated by Judge Rosemary Pooler upon the confirmation of a successor.

On November 17, 2021, Nathan was recommended for the vacancy by Senate Majority Leader Chuck Schumer. However, Nathan was likely pre-vetted by the White House as her nomination was made public the same day.

Legal Career

While Nathan’s legal career from clerkship to the bench was a relatively short nine years, she managed to hold a number of positions in that time, including in government, academia, and private practice. During this time, Nathan tried one bench trial in federal court, while also filing one merits brief, four amicus briefs, and one petition for certiorari at the Supreme Court.

Among her more significant matters during her career, Nathan was part of the legal team defending the constitutionality of a New York state tax statute relating to the taxation on cigarette sales in Indian reservations. See generally Seneca Nation of Indians, et al. v. Paterson (multiple related matters). Nathan also authored an amicus brief at the Supreme Court on behalf of forty one states and the District of Columbia, arguing that the Constitution permits remote sellers of cigarettes to be subject to state and local regulations. The Second Circuit ultimately upheld an injunction against the statute allowing the regulations.

Political Activity

Before joining the bench, Nathan was active in working on Democratic campaigns, having taken time off while at Wilmer to work as a legal adviser on the John Kerry Presidential campaign and having done voter protection for ten months for the Obama campaign in 2008. Nathan also occasionally attended meetings of the New York Democratic Lawyer’s Council.

Jurisprudence

Nathan has served as a federal trial judge for approximately nine years. In her time on the bench, Nathan has handled a number of high-profile cases, some of which are detailed below:

American Broadcasting Cos, Inc. v. Aereo, Inc. – Nathan was assigned this suit by broadcasting companies seeking to prevent Aereo, a cloud-based streaming service for over-the-air television, from streaming their broadcasts. Nathan declined to enjoin Aereo, citing prior precedent confirming the legality of cloud-based streaming services. Nathan’s ruling was upheld by the Second Circuit but overturned 6-3 by the Supreme Court in 2014 (573 U.S. 431).

United States v. Ali Sadr Hashemi Nejad – In 2020, Nathan dismissed a prosecution against businessman Ali Sadr for violating U.S. sanctions against Iran after prosecutors disclosed issues with disclosing evidence. Nathan also criticized the conduct, ordering the government to identify the prosecutors responsible.

Guennol Stargazer – In 2021, Nathan ruled that the sale of a figurine extracted from western Turkey could not be enjoined as the figurine had been under display for years and there was no evidence that it’s excavation had violated Ottoman law. Furthermore, Nathan ruled that Turkey’s claims to the figurine were barred by the doctrine of Laches, which requires claims to be timely brought.

Ghislaine Maxwell – Nathan is currently presiding over the trial of British socialite Ghislaine Maxwell, who is accused of conspiring with Jeffrey Epstein in sex trafficking. Nathan previously ordered Maxwell held without bond, finding her to be a risk of flight.

Overall Assessment

There is little doubt that Nathan is well-qualified for a seat on the Second Circuit. Having extensive experience both as a judge and in analyzing the law as an attorney, Nathan would be able to hit the ground running on the famously intellectual court. Nonetheless, Nathan is likely to attract a sizeable cadre of opposition, based less on a particular decision or case but more on her likelihood to be a liberal heavyweight on the bench.

Judge Leonard Stark – Nominee to the U.S. Court of Appeals for the Federal Circuit

The lone judge on the Federal Circuit with experience as a federal trial judge is retiring next year. President Biden has nominated a second trial judge, Judge Leonard Stark, from his home state of Delaware to replace her.

Background

Born on July 5, 1969 in Detroit, Leonard Philip Stark received a B.A., an M.A., and a B. Sc. from the University of Delaware in 1991 and received a J.D. from Yale Law School in 1996. After graduating, Stark clerked for Judge Walter Stapleton on the U.S. Court of Appeals for the Third Circuit.

After his clerkship, Stark joined the Wilmington office of Skadden, Arps, Slate, Meagher & Flom as an Associate. In 2002, Stark became an Assistant United States Attorney in Delaware. In 2007, Stark became a U.S. Magistrate Judge for the U.S. District Court for the District of Delaware.

On March 17, 2010, Stark was nominated by President Barack Obama to the U.S. District Court for the District of Delaware. He was confirmed unanimously by the U.S. Senate on August 5, 2010, and has served on the U.S. District Court since then.

History of the Seat

Stark has been nominated for a seat on the U.S. Court of Appeals for the Federal Circuit. The seat will open on March 11, 2022 when Judge Kate O’Malley moves to senior status.

Political Activity

While at the University of Delaware, Stark worked as a co-coordinator for Michael Dukakis’ presidential campaign. In 1992, Stark was an alternate delegate for Bill Clinton’s campaign.

Legal Career

After his clerkship on the Third Circuit, Stark joined Skadden Arps in Delaware, working in corporate and securities law. He then spent five years as an Assistant United States Attorney, working in both the criminal and civil divisions. Over the course of his career, Stark worked on two bench trials at Skadden and two jury trials at the U.S. Attorney’s Office.

Among the notable matters Stark handled at Skadden, he was part of the legal team for Cantor Fitzgerald LP, who sued several of its partners for breach of agreement, leading to a forty-day bench trial ending in a ruling in favor of Stark’s client. See Cantor Fitzgerald, LP v. Cantor, Del. Ch. No. 16297, 2000 WL 307370 (Del. Ch. Mar. 13, 2000).

Among his significant cases at the U.S. Attorney’s Office, Stark prosecuted three high-ranking officials with New Castle County, Delaware, for public corruption, racketeering, and fraud. See United States v. Gordon. Stark also handled appellate matters for the office, successfully defending a conviction and sentence for bank robbery before the Third Circuit. See United States v. Faines, 216 Fed. Appx. 227 (3d Cir. Feb. 14, 2007).

Jurisprudence

In 2007, Stark, at only 38, was appointed to be a U.S. Magistrate Judge for the District of Delaware, where he presided over arraignments, bond hearings, and federal misdemeanors, as well as felonies and civil cases where the parties consented to magistrate determinations. In his time as a magistrate judge, Stark handled one civil trial. Among the prominent cases he handled, Stark recommended that a class action challenging misrepresentations in automobile insurance agreements should be dismissed, a recommendation adopted by Judge Joseph Farnan and affirmed by the Third Circuit. See Eames v. Nationwide Mutual Ins. Co., 2009 WL 3041997 (3d Cir. Sept. 24, 2009).

Since his confirmation in 2010, Stark has been a U.S. District Court Judge on the District of Delaware, where he was made a name for himself by carrying an extensive patent docket. For example, Stark currently has 264 active patent cases on his docket and has presided over 31 patent jury trials. In a recent notable ruling, Stark ruled that Mentone Solutions could not patent packet data transmissions, as this was an invalid patent of an “abstract idea.” The Federal Circuit reversed Stark and revived the patent in a November 15 ruling.

Writings

Stark has written extensively throughout his career, including pieces describing the jurisprudence of his mentor Judge Walter Stapleton, see eg., Leonard Stark, Judge ‘The Game By The Rules’: An Appreciation of the Judicial Philosophy and Method of Walter K. Stapleton, 6 Delaware Law Review 223 (2003), and on presidential history. See Leonard Stark, Review: Mutual Contempt – Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade, 85 The American Oxonian 210 (Spring 1998). More interestingly, as a college student, Stark drafted multiple papers on the negative effects of gender roles, particularly in perpetuating homophobia and sexism. See L.P. Stark, Traditional Gender Role Beliefs and Individual Outcomes: An Exploratory Analysis, 24 Sex Roles: A Journal of Research 639 (1991). See also Leonard Stark, Examining the Effects of Gender Roles, 10 Enquiry: Research at the University of Delaware 8 (1989).

Overall Assessment

With extensive experience with patent litigation, it is hard to argue that Stark would not be qualified for the patent-heavy docket of the Federal Circuit. He will likely get a fairly smooth confirmation with bipartisan support.

Judge Gabriel Sanchez – Nominee to the U.S. Court of Appeals for the Ninth Circuit

California appellate judge Gabriel Sanchez makes a young, credentialed, and well-connected candidate for the Ninth Circuit to complete the three-judge package with Judges Koh and Thomas.

Background

A native of Los Angeles, Gabriel P. Sanchez received a B.A. from Yale College in 1998 and then worked as a Fulbright scholar in Argentina. Sanchez then received an M. Phil. from the University of Cambridge in 2000 and a J.D. from the Yale Law School in 2005. After graduating from law school, Sanchez clerked for Judge Richard Paez on the U.S. Court of Appeals for the Ninth Circuit and then joined Munger Tolles & Olson as an Associate.

Sanchez left Munger in 2011 and, after a brief stint with the California Attorney General’s Office, joined the staff of Governor Jerry Brown as Deputy Legal Affairs Secretary.

In 2018, Brown appointed Sanchez to the California Court of Appeal, First Appellate District, where he currently serves as a judge.

History of the Seat

Sanchez has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit to be vacated by Judge Marsha Berzon’s move to senior status.

Legal Experience

Sanchez started his career as a law clerk to Judge Richard Paez on the Ninth Circuit, and then spent six years at Munger, Tolles, and Olson, a firm that has produced multiple Ninth Circuit judges. He then spent eight years working for Governor Jerry Brown.

Munger Tolles and Olson

From 2006 to 2011, Sanchez worked at Munger Tolles and Olson, working alongside future Ninth Circuit Judges Paul Watford, John Owens, Michelle Freidland, and Daniel Collins. Among the cases he handled there, Sanchez represented one of the Defendants in a tort suit seeking damages for injuries allegedly suffered by a Navy serviceman due to asbestos exposure. See Taylor v. Elliott Turbomachinery Co. Inc., 170 Cal. App. 4th 564 (2009). He was also, alongside Collins, on the legal team for Occidental Petroleum in a challenge by environmental groups alleging destruction and illegal contamination. Carijano v. Occidental Petroleum Corp., 626 F.3d 1137 (9th Cir. 2010).

Additionally, Sanchez handled a number of civil rights cases as Munger, including representing the Lawyer’s Committee on Civil Rights in defending California’s policy of allowing undocumented state residents to pay in state tuition. Martinez v. Regents of the University of California, 241 P.3d 855 (Cal. 2010). He also challenged the State of California’s heat-illness-prevention regulation as constitutionally inadequate on behalf of the ACLU. See Bautista v. State of California, 201 Cal. App. 4th 716 (2011). His work in this case won him the ACLU of Southern California’s Social Justice Award in 2010.

Governor Brown’s Office

From 2011 to 2018, Sanchez served as Deputy Legal Affairs Secretary for Governor Jerry Brown, where he advised the Governor on criminal justice issues, as well as executive appointments, and clemency. Among the matters he handled there, Sanchez was the principal author of the Public Safety and Rehabilitation Act of 2016, which expanded rehabiilitative programs, limited prosecutors’ authority to try youth as adults without transfer hearings, and established a framework for prison safety regulations.

Jurisprudence

Since 2018, Sanchez has served as a Justice on the California Court of Appeal, First Appellate District, an intermediate appellate court that hears both criminal and civil cases. On the court, Sanchez joined a unanimous decision by the Court of Appeals reversing the denial of Batson challenges for dismissing a prospective juror who expressed support for Black Lives Matter. Sanchez also joined a unanimous decision reversing a conviction for gross vehicular manslaughter because the prosecutor misstated the law in his closing argument.

Among opinions he authored, Sanchez held that California law did not impose a deadline for the Governor to certify proposed construction projects for expedited administrative and judicial review under the California Environmental Quality Act.

Overall Assessment

As previously noted on this blog, Sanchez, with his youth, stellar credentials, and varied experience, makes for an attractive candidate for the court of appeals. While this is likely to draw opposition from conservatives, it is unlikely to derail his nomination altogether. If Democrats are disciplined, they can confirm Sanchez to the Ninth Circuit by the end of the year, adding a new liberal voice to the court.

Judge Lucy Koh – Nominee to the U.S. Court of Appeals for the Ninth Circuit

This is Judge Lucy Koh’s second chance at a Ninth Circuit seat, having first been nominated by President Obama but never confirmed. With a Democratic Senate, Koh’s chances look significantly better this time around.

Background

Born August 7, 1968 in Washington D.C., Koh grew up in Maryland, Mississippi, and Oklahoma before attending Harvard University and Harvard Law School. After graduating from law school, Koh worked for the Senate Judiciary Committee in Washington D.C. and then for the U.S. Department of Justice.

In 1997, Koh became a federal prosecutor with the U.S. Attorney’s Office for the Central District of California. She left this post in 2000 to become a Senior Associate with Wilson Sonsini Goodrich & Rosati in Palo Alto and in 2002, became a Partner with McDermott Will & Emery LLP.

In 2008, Gov. Arnold Schwarzenegger appointed Koh to the Santa Clara Superior Court. In 2010, President Obama appointed Koh to replace Judge Ronald Whyte on the U.S. District Court for the Northern District of California.

On February 25, 2016, Obama nominated Koh to the Ninth Circuit to replace Judge Harry Pregerson. Despite the Senate being controlled by Republicans, the Senate Judiciary Committee favorably reported Koh’s nomination to the Senate floor on September 20, 2021. However, Koh never received a final vote of confirmation and the seat was later filled by Trump appointee Daniel Collins. Koh remains a judge on the Northern District of California.

History of the Seat

Koh has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit. This seat will open when Judge Richard Paez takes senior status upon the confirmation of his successor.

Writings and Statements

While a student at Harvard, Koh both wrote and advocated on more diversity in hiring and academia, organizing a 1989 rally to promote the hiring of female and minority faculty. See, e.g., Campus Life: Harvard: The Flames of Student Protest Still Flicker, N.Y. Times, Mar. 19, 1989; see also Lucy Koh, Combatting Inequity, Public Interest Job Search Guide (Harvard Law School 6th ed. 1995). Koh continued her advocacy on this issue through law school. See Elizabeth A. Brown, Harvard Law School Sued, Christian Science Monitor, Dec. 26, 1990.

Legal Experience

Before joining the bench, Koh worked in a variety of positions, including in government, as a prosecutor, and in private practice. Throughout this time, Koh tried seven cases as either sole or co-counsel, three before juries, and four before judges. Among these trials, Koh led the prosecution of four defendants for a telemarketing fraud that cost $5 million to consumers, leading to the conviction of all four. United States v. Stapleton, SA CR-99-47(A)-GLT (C.D. Cal.).

On the appellate side, while in private practice, Koh successfully convinced the en banc Federal Circuit Court of Appeals to overturn prior precedent and place the burden of proof for willful patent infringement on challengers rather than defendants. See In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc).

Jurisprudence

In 2008, Koh was appointed to the Santa Clara Superior Court, where she presided over 19 cases to verdict/judgment, including fourteen jury trials. Among her more notable cases, Koh presided over a jury trial on molesting a child and indecent exposure. People v. Valdovinos, No. CC805147 (Cal. Super. Ct. 2008).

Since 2010, Koh has served as a U.S. District Court Judge for the Northern District of California. In this role, Koh has handled a number of high profile cases. Most notably, Koh presided over a lawsuit filed by Apple alleging that Samsung infringed on its patents in making its galaxy phone. Apple, Inc. v. Samsung Electronics, Inc., 137 S. Ct. 429 (2016). A jury found that Samsung had willfully infringed on Apple’s patents and ordered over $1 billion in damages. However, Koh ordered a retrial, finding that the jury had miscalculated damages and denied Apple’s motion for an injunction stopping sales of Samsung phones, a decision reversed by the Federal Circuit. See Apple, Inc. v. Samsung Electronics, Inc., 678 F.3d 1314 (Fed. Cir. 2012). The case ended up with the Supreme Court, which unanimously reversed the jury ruling and remanded. A second jury later also found in Apple’s favor.

More recently, Koh presided over litigation regarding the Trump Administration’s September 30 deadline for conducting the U.S. Census, issuing a preliminary injunction requiring an extension to the census deadline. The Ninth Circuit later, in a 2-1 vote, declined to disturb the injunction.

Overall Assessment

The first time Koh came before the U.S. Senate for confirmation, she was confirmed unanimously. When nominated for the Ninth Circuit in 2016, Koh was approved by the Senate Judiciary Committee by a bipartisan majority. As such, Koh can be optimistic the third time around. Of the three California nominees put forward for the Ninth Circuit, Koh remains the most likely to get bipartisan support although it would still be unlikely for Koh to get more than 5-6 Republican votes. Nonetheless, one can expect Koh to be confirmed by the end of the year.

Judge Holly Thomas – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Los Angeles County Superior Court Judge Holly Thomas is, at 41, the youngest of the four nominees to the Ninth Circuit put forward by the Biden Administration. If confirmed, Thomas would likely be a strong future contender for elevation to the Supreme Court.

Background

Thomas received her B.A. with Honors and Distinction from Stanford University in 2000 and a J.D. from Yale Law School in 2004. After graduating from law school, Thomas clerked for Judge Kim McLane Wardlaw on the U.S. Court of Appeals for the Ninth Circuit.

After her clerkship, Thomas joined the NAACP Legal Defense and Educational Fund as assistant counsel. In 2010, Thomas moved to the U.S. Department of Justice Civil Rights Division as an appellate attorney. She left the Department in 2015 to join the New York Solicitor General’s Office.

In 2016, Thomas returned to California to work for the California Department of Fair Employment and Housing. In 2018, Thomas was nominated by Gov. Jerry Brown to the Los Angeles County Superior Court, where she currently serves.

History of the Seat

Thomas has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit. While the White House has not announced which seat Thomas is expected to fill on the Court, she may be nominated to replace Judge Richard Paez, who is the only Los Angeles-based judge on the Ninth Circuit taking senior status.

Legal Experience

Before joining the bench, Thomas worked primarily as a civil rights litigator. She started her career at the NAACP Legal Defense and Education Fund. At the fund, Thomas was part of the legal team that defended the University of Texas’ admissions policies, which used race as part of a variety of factors in college admissions. See Fisher v. Texas, 556 F. Supp. 2d 603 (W.D. Tex. 2008). The suit eventually ended in the Supreme Court, which upheld the policy. See id., 136 S. Ct. 2198 (2016).

From 2010 to 2015, Thomas worked for the Civil Rights Division in the U.S. Department of Justice. In this role, Thomas represented the United States in suing the Tucson School District over court supervision of a desegregation decree. Fisher v. Tucson Unified Sch. Dist., 652 F.3d 1131 (9th Cir. 2011). She also represented the government as amicus in support of female volleyball players suing Quinnipiac University for violations of Title IX. See Biediger v. Quinnipiac Univ., 691 F.3d 85 (2d Cir. 2012).

In 2015, Thomas left the Department of Justice to join the New York Solicitor General’s Office. During her time with that office, Thomas helped defend New York’s ban on assisted suicide. See Myers v. Schneiderman, 140 A.D.3d 51 (N.Y. App. Div. 2016). She also argued before the Second Circuit arguing that the Eighth Amendment complaint of a state prisoner should be dismissed for failure to exhaust administrative remedies (the Circuit, in an opinion by Judge Robert Katzmann, disagreed). Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016).

Jurisprudence

Since 2018, Thomas has served as a judge on the Los Angeles Superior Court. In this role, Thomas presides over trial court matters in criminal, civil, family, and other state law matters. Among the notable matters she has handled on the court, Thomas dismissed with prejudice a restraining order request by musician Elizabeth le Fey against her ex-boyfriend Sam France, finding that she had failed to disclose a prior restraining order against her by him on her application. Thomas’ ruling attracted criticism from some Los Angeles family lawyers, who noted that le Fey was proceeding without an attorney and that she had disclosed the restraining order in a different place on her application.

Overall Assessment

While Thomas doesn’t have a history of controversial statements, she is nonetheless likely to attract strong opposition for three reasons: first, her comparative youth; second, her history of work as a civil rights attorney; and third, her promise as a future SCOTUS candidate. Nonetheless, Thomas looks favored to win confirmation by the end of the year and to add a liberal voice to the Ninth Circuit.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Midwest

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. We turn now to the Midwest.

Sixth Circuit

Court of Appeals

The Cincinnati based Sixth Circuit Court of Appeals serves the states of Kentucky, Michigan, Ohio, and Tennessee. The sixteen member court has been the site of notable squabbles between the judges, including allegations of judicial misconduct. Today, while the court has eleven Republican appointees and five Democratic appointees, the conservative-liberal divide is a closer nine to six, with Judge Julia Smith Gibbons occasionally voting with both blocs.

The Sixth Circuit also has a dramatic age divide between the conservative and the liberal wings. Of the six “liberal” judges on the court, four are already eligible for senior status. Additionally, a fifth, Judge Helene White, becomes eligible this year, while the sixth, Judge Jane Stranch, becomes eligible next year. In contrast, only two judges outside the liberal bloc are eligible for senior status, Gibbons and Judge Richard Griffin.

Despite the number of liberal judges who are eligible for senior status, there has not been an exodus in the Biden Administration. So far, no Sixth Circuit judge has officially announced their intention to take senior status or retire. Judge Bernice Donald, an Obama appointee who has been eligible for senior status since 2016, reportedly announced her move to take senior status in a letter to clerks in May. However, to date, no official announcement of the vacancy has been posted on the U.S. Courts website, and it is not unprecedented for a judge who initially decides to take senior status to subsequently change their mind.

At any rate, even without Donald, three Clinton appointees on the court have been eligible for senior status for the better part of a decade, and one or more of them could take senior status before the end of the Congress, as could Gibbons, White, or Stranch. The only eligible judge unlikely to take senior status under Biden is the staunchly conservative Griffin.

Kentucky

The Eastern and Western Districts of Kentucky are served by ten active judges, four appointed by George W. Bush, two by Obama, and four by Trump. Currently, only Judge Karen Caldwell of the Eastern District of Kentucky is eligible for senior status, although Chief Judge Danny Reeves becomes eligible on August 1, 2022. Neither is expected to take senior status in the near future.

Michigan

Michigan is divided into two judicial districts: the Eastern and Western. The Eastern District, based in Detroit and composed of 15 active judgeships, currently has two vacancies, vacated by Judge Victoria Roberts on February 24 and by Judge David Lawson on August 6. Biden has nominated Oakland County Judge Shalina Kumar to replace Roberts and Michigan Senators are currently accepting applications to replace Lawson, with a deadline of September 2. The four judgeship Western District has one vacancy, opened by Judge Janet Neff’s move to senior status March 1. Michigan Court of Appeals Judge Jane Beckering has been nominated to replace Neff. Both nominees have received a hearing before the Senate Judiciary Committee.

Additional vacancies may also be possible. Judges Denise Hood, Paul Borman, and Thomas Ludington on the Eastern District and Judge Paul Maloney on the Western District are already eligible for senior status. Additionally, Judges Sean Cox, Mark Goldsmith, and Gershwin Drain will become eligible for senior status before the end of the 117th Congress.

Ohio

Bisected into two judicial districts, Ohio federal trial courts are poised for a significant turnover. The eleven judgeship Northern District of Ohio currently has three vacancies. Ohio Senator Sherrod Brown gathered applications to fill the vacancies in February with an application deadline on March 16. So far, no recommendations have been made public and no nominations have been announced. Additionally, Chief Judge Patricia Gaughan and Judge John Adams are eligible for senior status although both have disclaimed any interest in taking it.

The Southern District has no current vacancies but Chief Judge Algernon Marbley and Judge Judge Edward Sargus are already eligible for senior status, while Judge Michael Watson will reach eligibility on November 7 and Judge Timothy Black will hit the threshold in 2022. One or more of these jurists may move to senior status before the end of the 117th Congress.

Tennessee

The citizens of Tennessee are served by three judicial districts: the Eastern, Middle, and Western Districts. None of the three districts currently have any vacancies, although there are several judges who are eligible for senior status who may take senior status before the end of 2022: Judge Thomas Varlan on the Eastern District; Judge Aleta Trauger on the Middle District; and Judges Stanley Anderson and John Fowlkes on the Western District. Additionally, Chief Judge Travis McDonough on the Eastern District is a possibility to be elevated to the Sixth Circuit to replace Donald, which would allow Biden to replace him in turn.

Seventh Circuit

Court of Appeals

The Chicago based Seventh Circuit Court of Appeals is home to many of the federal judiciary’s intellectual heavyweights. Despite having an 8-3 Republican appointee majority, the court is generally considered to be more moderate than conservative. Biden has already named one judge to the Seventh Circuit, Judge Candace Jackson-Akiwumi. He may have the opportunity to name others as four of the court’s eleven judges are eligible for senior status: Judges Frank Easterbrook, Michael Kanne, Ilana Rovner, and Diane Wood. Additionally, two more judges reach eligibility next year, Chief Judge Diane Sykes, and Judge David Hamilton. While Easterbrook and Sykes are unlikely to move to senior status in the near future, any of the other four could choose to vacate their seats before the end of the 117th Congress.

Illinois

Represented by Senate Judiciary Committee Chairman Richard Durbin, Illinois saw seats filled fairly quickly under the previous few Administrations and largely avoided the lingering vacancies that plagued other states. Currently, there is no vacancy on any of the Illinois District Courts and only one future vacancy is teed up, from Northern District Judge Matthew Kennelly’s move to senior status in October. Additional vacancies, however, are possible, as Judge Sue Myerscough on the Central District and Judges Rebecca Pallmeyer and Charles Norgle on the Northern District are eligible for senior status.

Indiana

Indiana is served by the Northern District and the Southern District, each with five active judgeships. Currently, there is one judgeship vacant in the Northern District, created by Judge Theresa Springmann’s move to senior status in January. There is also a future vacancy scheduled in the Southern District when Judge Richard Young moves to senior status upon confirmation of a successor. While Indiana’s Republican Senators accepted applications to replace Springmann in 2019, no nomination has been made as of yet. However, President Biden named U.S. Attorneys to both of Indiana’s judicial districts as part of his first batch of nominees, suggesting that judicial nominees may also be in the offing.

Wisconsin

Divided into the five judgeship Eastern District and the two judgeship Western District, Wisconsin currently has one judicial vacancy, vacated by Judge William Griesbach’s move to senior status on December 31, 2019. So far, no nomination has been put forward to replace Griesbach, although Wisconsin Senators Tammy Baldwin and Ron Johnson recommended four candidates to fill the vacancy in June: state court judges Tammy Jo Hock, William Pocan, and Thomas Walsh, and federal public defender Krista Halla-Valdes. Given the recommendations, a nominee is likely in the Fall.

Additional vacancies may also be possible. Both Judges Joseph Stadtmueller and Lynn Adelman are eligible for senior status and may choose to make the move this Congress.

Eighth Circuit

Court of Appeals

With ten judges appointed by Republican Presidents and only one appointed by a Democratic President, the Eighth Circuit is widely considered one of the most conservative courts in the country. This effect is magnified by the senior judges on the court, the vast majority of whom are also deeply conservative. If there is a bright side for liberals, it is that the lone Democratic-appointee on the court, Judge Jane Kelly, is also one of the court’s younger judges. The Eighth Circuit is currently the only court of appeals that has not had a vacancy open during the Biden Administration. If one opens, it’ll likely be due to the moves of Judges James Loken, William Benton, or Bobby Shepherd, who are the only judges currently eligible for senior status.

Arkansas

Arkansas, divided into the Eastern and Western Districts, has eight trial judgeships in total. Currently, those judgeships are filled by six appointees of President Obama, one of President George W. Bush, and one of President Trump. The only judgeship set to open this Congress is Judge Paul K. Holmes’ seat on the Western District of Arkansas, which is set to open on November 10. While Holmes gave plenty of warning, announcing his move on December 1, 2020, no nominee has been put forward by the White House. This is likely because the White House has been unable to reach an agreement with Arkansas Senators John Boozman and Tom Cotton. While, during the Obama Administration, Boozman supported and returned blue slips for five District Court nominees, including Holmes, Cotton has yet to approve any Arkansas nominee from a Democratic President. As such, it remains to be seen if a nominee can be put forward to fill the vacancy.

Iowa

The judges on the Northern and Southern Districts of Iowa are comparatively young, with four out of five being under the sixty (and two under the age of fifty). The lone exception is Judge John Jarvey who has announced his intention to retire on March 18, 2022. Given Iowa Senator Chuck Grassley’s role as Ranking Member of the Senate Judiciary Committee, the White House is likely to consult with him on Jarvey’s replacement. So far, no recommendations have been made public.

Minnesota

The U.S. District Court for the District of Minnesota has one vacancy, created when Judge Joan Ericksen moved to senior status on October 15, 2019. Senators Amy Klobuchar and Tina Smith sent a shortlist of candidates to fill the vacancy to the White House in early January but no nomination has been officially submitted yet. To compound the issue, additional vacancies may soon open as Chief Judge John Tunheim, who is eligible for senior status, steps down as Chief next year and as Judge Susan Nelson hits eligibility later this year.

Missouri

The Eastern and Western Districts of Missouri share an interesting quirk: they have sixteen active judgeships between them but only fourteen active judges. This is because two of the judges, Judge Rodney Sippel and Judge Brian Wimes, sit on both the Eastern and Western Districts. Counting each judge only once, the Districts are composed of eight Obama appointees, three Trump appointees, two Bush appointees, and one Clinton appointee. While there are no current vacancies, Sippel and Judge Henry Autrey are both eligible for senior status.

Nebraska

While currently without a vacancy, the District of Nebraska has an informal policy of judges moving to senior status as soon as they hit eligibility in order to best handle the caseload. The first judge to hit that eligibility threshold is Judge John Gerrard, who will hit it by the end of 2022.

North Dakota

With the two judgeships in North Dakota having been filled recently by President Trump, it’s extremely unlikely that either will open this Congress.

South Dakota

The three judgeship District of South Dakota is currently composed of two appointees of President Obama and one of President Clinton. It is set to have a vacancy open on October 1 when Judge Jeffrey Viken moves to senior status. In addition to Viken, Judge Karen Schreier became eligible for senior status on July 29 and may make the move as well. In April 2021, South Dakota Democratic Party Chairman Randy Seiler submitted three names to fill the vacancy: former Congresswoman Stephanie Herseth Sandlin; Cheyenne River Sioux Tribe Attorney General Tracey Zephier; and federal prosecutor Sarah Collins. A few weeks later, Herseth Sandlin took her name out of consideration. No nominee has been named to replace Viken yet.

Justice Beth Robinson – Nominee to the U.S. Court of Appeals for the Second Circuit

A pioneer in shaping the litigation and legislative strategy behind same-sex marriage, Beth Robinson made history in 2011 as the first openly LGBT Justice on the Vermont Supreme Court. She is now poised to make history again as the first openly LGBT judge on the Second Circuit.

Background

Born March 6, 1965, Beth Robinson graduated from Dartmouth College in 1986 and the University of Chicago Law School in 1989. After graduating, Robinson clerked for Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit and then joined the D.C. Office of Skadden, Arps, Slate, Meagher & Flom as an associate.

In 1993, Robinson joined Langrock Sperry & Wool in Vermont. In 2010, newly elected Democratic Governor Peter Shumlin chose Robinson to be his counsel. A year later, Shumlin named Robinson to the Vermont Supreme Court, where she currently serves.

History of the Seat

Robinson has been nominated for a Vermont seat on the U.S. Court of Appeals for the Second Circuit. This seat was vacated by Judge Peter Hall, who moved to senior status on March 4, 2021 (Hall tragically passed away shortly after).

Legal Career

Robinson spent most of her career in private practice, although she did spend a few months as Counsel for Gov. Peter Shumlin before he appointed her to the Supreme Court.

Notably, while in private practice, Robinson was instrumental in shaping the legislative and litigation strategy to bring marriage equality to Vermont. In 1999, Robinson successfully argued before the Vermont Supreme Court that the Vermont Constitution prohibited restricting same-sex couples from the benefits of marriage. Baker v. State, 744 A.2d 864 (Vt. 1999). Robinson continued her work as an advocate for same-sex marriage on the legislative front throughout the 2000s until she was tapped by Shumlin. See, e.g., John Curran, In Vermont, Gay Marriage Debate Keeping It Civil, A.P. State * Local Wire, Jan. 13, 2008.

Jurisprudence

Robinson has served on the Vermont Supreme Court for the past decade. Her record on the bench is generally liberal but within the Court’s mainstream. Below, we have summarized some of the key features of her jurisprudence:

Negligence and Civil Liability

On the bench, Robinson has generally read civil liability broadly to allow matters to reach a jury. For example, in 2013, Robinson wrote for a unanimous court in finding that summary judgment should not have been granted to an insurer over an accident caused by a permittee to whom the insured owner loaned the car. See State Farm Mutual Automobile Co. v. Colby, 2013 VT 80.

Criminal Procedure

Robinson has also read criminal procedural protections broadly, cabining prosecutions. For example, she wrote for the court in holding that the mere fact of a motorist stopping his car in a remote location did not create grounds for a trooper to make a traffic stop. State v. Button, 2013 VT 92. Robinson also overturned Shamel Alexander’s conviction for heroin trafficking, finding that law enforcement violated Alexander’s Fourth Amendment rights in stopping and searching him. Vermont v. Alexander, 2016 VT 19.

Criminal Law

Robinson has generally read criminal statutes narrowly. For example, Robinson wrote for a divided 3-2 court in overturning a man’s conviction of harassment, holding that Vermont law required threats of violence in order for conduct to qualify under the statute. State v. Waters, 2013 VT 109. Robinson also wrote for the court in throwing out a state prisoner’s conviction for illegally practicing law after she assisted other inmates with filing legal claims. In re Serendipity Morales, 2016 VT 85.

Furthermore, Robinson dissented from the Supreme Court’s 3-2 decision upholding Justin Kuzawski’s conviction for assault with a deadly weapon, writing that, in her view, the safety boxcutter that Kuzawski brandished did not qualify under the statute. See State v. Kuzawski, 2017 VT 118. She was also part of a panel that held that Jack Sawyer, accused of planning a school shooting, could not be held without bail. See Sadie Housberg, VT Supreme Court: Sawyer Cannot Be Held Without Bail, Middlebury Campus, Apr. 18, 2018.

In contrast, Robinson upheld Latonia Congress’ conviction for murder, finding that the trial judge was correct in declining to instruct the jury that they could reduce the charge to voluntary manslaughter. State v. Congress, 2014 VT 129. Chief Justice Paul Reiber dissented, arguing that common law retained the discretion to reduce such charges in the jury. See id. Robinson also dissented from a decision tossing a conviction for posting KKK recruitment posters on the apartment doors of black women. See State v. Schenk, 2018 VT 45. Notably, Robinson wrote for a 4-1 court (with Chief Justice Marilyn Skoglund in dissent) upholding Vermont’s revenge porn law against a constitutional challenge. State v. Van Buren, 2018 VT 95.

Writings and Statements

Given her prominence in the marriage equality fight in Vermont, Robinson has spoken and written a number of times regarding the issue. For example, in 2009, Robinson moderated a panel at Dartmouth College on the subject, where she noted that she was working on the issue’s legal strategy as early as 1994. See Same-Sex Marriage in Law and Society: Dartmouth College’s Law Day Program 2009: Transcript of Law Day Panel, 34 Vt. L. Rev. 243 (Winter 2009). She also participated in a symposium on marriage law for the Michigan Journal of Gender & Law. See 10 Mich. J. Gender & L 21, 27 (2003). Her remarks have (understandably) been strongly supportive of marriage equality. For example, in a speech at Seton Hall Law School, Robinson noted the impact of laws that discriminate based on sexual orientation:

“The law also tells a story…Before July 1, 2000, the story told by the laws of every state in this country was that committed, loving same-sex couples don’t exist, or if we do, our relationships have no value, and aren’t worthy of equal treatment under the law.” Beth Robinson, The Road to Inclusion for Same-Sex Couples: Lessons From Vermont, 11 Seton Hall Const. L. J. 237 (Spring 2001).

Robinson has also worked on the legislative battle for same-sex marriage, speaking out against bills to define marriage as only between a man and a woman. See Bill Would Define Marriage as Union of Man and Woman, A.P. State & Local Wire, Mar. 10, 1999. Robinson also advocated in favor of Vermont’s civil union bill, see Ross Sneyd, Sweeping Civil Union Bill Passes; Governor Will Sign It Into Law, A.P. State & Local Wire, Apr. 25, 2000, and later, Vermont’s gay marriage law. See John Curran, In Vermont, Gay Marriage Debate Keeping It Civil, A.P. State * Local Wire, Jan. 13, 2008.

Not all of Robinson’s writings have focused on the issue of same-sex marriage. In 1999, Robinson authored an article discussing negligence law affecting skiers injured on the slopes, and noting that Vermont caselaw generally leaves releases of liability unenforceable as a matter of public policy. See Beth Robinson, Playing it Safe: Allocating the Risk of Harm on the Slopes, 25 Ver. B. J. 15 (Mar. 1999).

Overall Assessment

With a decade of experience on Vermont’s highest court and more than two decades in litigation, Robinson will likely be deemed to be qualified for a seat on the Second Circuit. However, her advocacy on the same-sex marriage front, as well as her left-leaning record on the Supreme Court, may make her a controversial nominee to some senators. Nonetheless, there is little in Robinson’s record that would cause Democratic support to vanish, and, as such, her nomination will likely be confirmed by the end of the year.

Toby Heytens – Nominee to the U.S. Court of Appeals for the Fourth Circuit

Virginia Solicitor General Toby Heytens, nominated for the Fourth Circuit, is, in many ways, a liberal counterpart to President Trump’s most notable appellate nominees: young; impeccably credentialed; and politically active.

Background

Born on December 24, 1975, Toby Jay Heytens received a B.A. from Macalester College in 1997, where he was on the mock trial team, Seth Hattena, Mock Trial Judges College Students, Telegraph Herald, Dec. 2, 1995, and a J.D. from the University of Virginia Law School in 2000. After graduating, Heytens clerked for Chief Judge Edward Becker on the U.S. Court of Appeals for the Thirs Circuit and then for Justice Ruth Bader Ginsburg on the U.S. Supreme Court (his clerk year on the court included NYU Dean Trevor Morrison, SDNY Judge Jesse Furman, and 8th Cir. Judge David Stras).

After his clerkship, Heytens joined the D.C. office of O’Melveny & Myers as an Associate. Heytens left to become a professor at Cornell Law School, and then, in 2006, at the University of Virginia Law School, where he stayed until 2018 (notwithstanding a three year leave of absence to work in the U.S. Solicitor General’s Office). In 2018, Attorney General Mark Herring named Heytens to be Virginia’s Solicitor General, and Heytens has served in that role since.

History of the Seat

Heytens has been nominated to replace U.S. Circuit Judge Barbara Milano Keenan, who will be moving to senior status on August 31, 2021. Heytens was one of three candidates recommended by Virginia Senators Mark Warner and Tim Kaine for the vacancy on May 25, 2021. Frank Green, Senators from Virginia Recommend Three Candidates to Fill Federal Appeals Court Vacancy, Richmond Times-Dispatch, May 25, 2021. Heytens was announced on June 30, 2021.

Legal Experience

After his clerkships, Heytens started his career at O’Melveny & Myers, where, appointed under the Criminal Justice Act, Heytens represented Richard Wayne Simons, convicted of burglary in Maryland. See Peter Geier, New Trial Ordered for Burglary, Baltimore Daily Record, Nov. 2, 2004. Heytens was able to get the Court of Special Appeals to reverse Simons’ conviction, arguing that the prosecutor’s failure to disclose an inculpatory witness statement required suppression of the identification. See id.

While Heytens has spent most of his career since O’Melveny in academia, he did have two notable periods of litigation: from 2007 to 2010 in the U.S. Solicitor General’s Office; and since 2018 as Virginia Solicitor General.

During the former period, Heytens argued six cases before the U.S. Supreme Court:

Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008) – The Age Discrimination in Employment Act (“ADEA”) requires a plaintiff to file a “charge” with the Equal Employment Opportunity Commission (“EEOC”) within 60 days of the discriminatory act. This case discussed whether filing an intake questionnaire within the 60 days qualifies as filing a charge even where the agency fails to file a formal “charge” within the time limit. Heytens argued as amicus that the filing of an intake questionnaire did not qualify as a charge under the law. The Supreme Court disagreed in a 7-2 ruling by Justice Anthony Kennedy and held that the plaintiffs had met the requirement to file a charge.

Flores-Figueroa v. United States, 556 U.S. 646 (2009) – The petitioner in this case was an illegal immigrant who had used a social security number belonging to another person and was convicted of two counts of aggravated identity theft. The question raised was whether the government needed to prove that the petitioner was aware that the social security number he used belonged to another person for the conviction. Heytens argued that the government did not need to prove this element but the Supreme Court held unanimously, in an opinion by Justice Stephen Breyer, that it did.

Arizona v. Johnson, 555 U.S. 323 (2009) – The question was whether a police officer could, without probable cause, frisk a suspect during a traffic stop in the middle of a conversation about a topic unrelated to the stop. Heytens argued as amicus that probable cause was not needed in that scenario. The Supreme Court, in a unanimous opinion by Justice Ruth Bader Ginsburg, agreed that questions about unrelated topics during the temporary detention of a traffic stop did not transform the stop into a consensual encounter and that an officer could search an individual for weapons without probable cause.

United Student Aid Funds Inc. v. Espinosa, 559 U.S. 260 (2010) – In this case, Heytens argued as amicus in favor of a lender, arguing that the lender’s due process rights were violated when a borrower was permitted in discharging $4500 in loan debt in a bankruptcy proceeding without a showing of “undue hardship.” The Supreme Court, in a unanimous opinion by Justice Clarence Thomas, held that the failure to find “undue hardship” was mere legal error and did not rise to a due process violation.

Maryland v. Shatzer, 559 U.S. 98 (2010) – This case involved an inmate who had been questioned in 2003 regarding allegations of sexual abuse of his child, and had invoked his Miranda rights at the time. The inmate was subsequently questioned in 2006 by a different detective who was unaware of the previous invocation. The question before the Supreme Court was whether the statements made in the 2006 confession should be suppressed due to the 2003 invocation. Heytens argued as amicus that they should not be suppressed and the Supreme Court, in a unanimous opinion by Justice Antonin Scalia, agreed.

Dolan v. United States, 560 U.S. 605 (2010) – The question in this case was whether the 90 day time limit to award restitution under the Mandatory Victims Restitution Act was jurisdictional, with Heytens arguing that the district court could still award restitution outside the limits. The Supreme Court agreed in a 5-4 ruling by Justice Stephen Breyer.

During his time in academia, Heytens managed the University of Virginia Law School Supreme Court Litigation Clinic and also argued one case before the U.S. Supreme Court:

City of Hays, Kansas v. Vogt, 584 U.S. ___ (2018) – Heytens represented the City of Hays, Kansas, in arguing that the Fifth Amendment rights of a former police officer were not violated when compelled statements were used during a probable cause hearing. The Supreme Court did not decide the case, instead dismissing the petition for certiorari as improvidently granted after oral argument.

As Virginia Solicitor General, Heytens serves as the Commonwealth’s top appellate lawyer and has argued three more cases before the U.S. Supreme Court:

Virginia Uranium, Inc. v. Warren, 587 U.S. ___ (2018) – In this suit, Heytens defended Virginia’s ban on uranium mining against a pre-emption challenge under the Atomic Energy Act. The Supreme Court ultimately upheld the Virginia ban in a 6-3 decision, with Justice Neil Gorsuch writing for a plurality of three justices in the controlling opinion.

Virginia House of Delegates v. Bethune-Hill, 587 U.S. ___ (2019) – This case arose as a challenge to “racial gerrymandering” in the redistricting of state house districts in Virginia. After a lower court panel struck down 11 districts, the Solicitor General’s Office declined to appeal, and the Virginia House of Delegates (then controlled by Republicans) filed an appeal. The Supreme Court dismissed the case in a 5-4 opinion by Justice Ruth Bader Ginsburg on the basis that the Virginia House of Delegates lacked standing to appeal.

Mathena v. Malvo – In this case, Heytens sought to reinstate sentences of life imprisonment against D.C. sniper Lee Malvo, vacated by a lower court due to prior Supreme Court precedent regarding life in prison for minors. After argument, the Supreme Court dismissed the case without decision due to an intervening change in law in Virginia.

In addition to his work before the U.S. Supreme Court, Heytens has defended Virginia’s coronavirus restrictions against legal challenges. See, e.g., Denise Lavoie, Virginia Defends Coronavirus Restrictions in Church Lawsuit, A.P. Int’l, May 7, 2020. In other notable matters, Heytens successfully argued before the Virginia Supreme Court that the risk of violence justified a weapons bar on a gun rights rally, see Denise Lavoie, Virginia’s Highest Court Upholds Weapons Ban at Gun Rally, A.P., Jan. 17, 2020, and defended the legality of removal of a Robert E. Lee statue from Richmond. See Adam Klasfeld, ‘A Matter of Racial Equality’: Virginia’s Solicitor General Urges Top Court to Affirm Ruling Allowing Removal of Robert E. Lee Statue, Newstex Blogs, June 8, 2021.

Writings

Having been an academic for most of his career, Heytens has written a number of articles discussing developments in the law. Some of his writing is summarized below:

The Constitutionality of Blaine Amendments

As a law student in 2000, Heytens argued in a note that Blaine Amendments, amendments in state constitutions that bar public money from being spent to benefit religious institutions, are constitutionally suspect under the Equal Protection Clause as they discriminate based on religion. See Toby J. Heytens, School Choice and State Constitutions, 86 Va. L. Rev. 117, 140 (February 2000). Heytens details the anti-Catholic animus underlying many of the amendments and suggests that any effort by states to restrict public money in a voucher program from going to religious schools would likely run afoul of the Equal Protection Clause. See id. at 153-54.

“Transitional Moments”

Heytens has been particularly active in writing about the issues and problems that arise in applying changes in the law. In 2006, Heytens wrote on the application of changes in criminal law and precedent on cases that are pending during the “transition.” Toby J. Heytens, Managing Transitional Moments in Criminal Cases, 115 Yale L.J. 922 (March 2006). Heytens criticizes traditional views of “forfeiture” in the criminal context as unduly restrictive, arguing that we shouldn’t penalize criminal defendants from making legal arguments that were not viable at the time that the defendant was initially convicted. See id. at 942-43. In 2012, Heytens further discussed retroactivity in the law and potential remedies when the law changes. Toby J. Heytens, The Framework(s) of Legal Change, 97 Cornell L. Rev. 595 (March 2012).

Reassignment on Remand

In 2014, Heytens authored an article discussing the rare practice of appellate courts reassigning decisions to different district court judges after reversing the original opinions. Toby J. Heytens, Reassignment, 66 Stan. L. Rev. 1 (Jan. 2014). Heytens suggests that the practice be more clearly delineated through local rules that are broadly applicable to reassignment decisions rather than having the decisions be made on a case-by-case basis. See id. at 54.

Political Activity

Heytens has an extensive record of political contributions, almost exclusively to Democrats. Recipients of Heytens’ contributions included the Presidential campaigns of Barack Obama, Hillary Clinton, and Joe Biden, as well as Gov. Ralph Northam, A.G. Mark Herring, and Rep. Abigail Spanberger.

Overall Assessment

With excellent academic credentials, and a record of strong appellate advocacy, Heytens can be deemed well-qualified for a seat on the Fourth Circuit. Nonetheless, he may draw opposition based on his academic writings, as well as his litigation history (including his defense of the Lee statue removal and the firearms ban) and his political contributions.

However, barring any unexpected developments, Heytens will likely be confirmed in due course. On the bench, Heytens is expected to pad up the Fourth Circuit’s aging center-left majority.

Jennifer Sung – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Labor-side attorneys aren’t commonly selected for the federal bench, even by past Democratic Administrations. As such, the nomination of Jennifer Sung, who has spent her entire career representing unions and workers’ rights organizations, to the Ninth Circuit is particularly notable.

Background

Jennifer Sung received her B.A. from Oberlin College in 1994 and then spent three years working as a labor organizer for the Service Employees International Union Local 74. She then spent three years as an organizer with the Service Employees International Union Local 1199 before joining Yale Law School. After graduating, Sung clerked for Judge Betty Binns Fletcher on the U.S. Court of Appeals for the Ninth Circuit and then served as a Skadden Fellow at the Brennan Center for Justice at New York University Law School.

In 2007, Sung joined the San Francisco office of Altshuler Berzon LLP, a union-side labor law firm established by now-Ninth Circuit Judge Marsha Berzon. In 2013, Sung became a Partner with McKanna Bishop Joffe LLP in Portland. Since 2017, Sung has been a member of the Oregon Employment Relations Board, where she helps to resolve labor disputes and conflicts.

History of the Seat

Sung has been nominated to an Oregon seat on the U.S. Court of Appeals for the Ninth Circuit. This seat is currently held by Judge Susan Graber, who has announced her intention to move to senior status upon confirmation of her successor.

Legal Experience

Consistent with her work as a labor organizer prior to law school, Sung has spent her career as a labor lawyer, frequently representing unions and worker’s groups. Some of her prominent cases are summarized below.

Challenge to Arizona SB 1365

In 2011, Sung represented the Local 5 Service Employees International Union in challenging Arizona SB 1365, which limited public employees’ ability to send payroll deductions to certain unions that engaged in political activity. See United Food & Commer. Workers Local 99 v. Brewer, 817 F. Supp. 2d 1118 (D. Ariz. 2011). The law was enjoined by U.S. District Judge Murray Snow, who found that it violated the First Amendment. See id.

Challenge to ACA Individual Mandate

In 2011, Virginia challenged the individual mandate of the Affordable Care Act as unconstitutional and won before the U.S. District Court. Sung represented the Service Employees International Union as amicus before the Fourth Circuit urging the court to uphold the mandate. See Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011). The Court upheld the constitutionality of the individual mandate (and the U.S. Supreme Court eventually agreed). See id.

New York Transit Strike of 2005

In 2005, during negotiations over a new collective bargaining agreement between transportation unions and the the New York City Transit Authority, the Authority obtained an injunction pursuant to New York’s Taylor Law to prevent the unions from striking. See New York City Tr. Auth. v. Transport Workers Union of A., 35 A.3d 73, 75 (N.Y. App. Div. 2006). When the Local 100 of Transport Workers Union of America initiated a strike anyway, it was found in contempt and fined $1 million per day. See id. Sung represented amicus in supporting the Union’s challenge to the contempt citation on appeal. See id. However, the Appellate Division of the New York Supreme Court upheld the citation against the Union’s Sixth and Fourteenth Amendment challenges. See id.

Los Angeles Worker Retention Ordinance

In 2011, Sung represented amicus in defending the City of Los Angeles worker retention ordinance, which limited employers’ ability to replace their workforces. See California Grocers Ass’n v. City of Los Angeles, 52 Cal. 4th 177 (2011). While the California Court of Appeals struck down the ordinance as being pre-empted by state law, the California Supreme Court upheld the ordinance. See id. at 210.

Legislative and Policy Work

While at the Brennan Center, Sung also worked on labor policy outside of the litigation context. For example, Sung advised the New York Working Families Policy in developing a proposal to tax companies, such as Wal Mart, who failed to provide health benefits for their workers. See Danny Hakim, Wal-Mart Looms Over 2 Bills to Improve Worker Health Care, N.Y. Times, Mar. 8, 2006. Sung also helped draft a Chicago ordinance requiring big box retailers, such as Wal-Mart, to provide a living wage to employees. See Gretchen Ruethling, In Chicago, New Pay Law Is Considered for Big Stores, N.Y. Times, May 28, 2006.

Overall Assessment

With extensive experience in labor law, Jennifer Sung has an unusual background for an appellate nominee. Not since Marsha Berzon was appointed to the Ninth Circuit in 2000 has such a nominee been picked for the Ninth Circuit. Based on her representations and her work in drafting ordinances and legislation, Sung is likely to attract opposition from most Senate Republicans. However, assuming that Democrats stick together, they should be able to confirm Sung by the Fall. Once confirmed, it is likely that Sung would establish a jurisprudential profile similar to that of Berzon’s.