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.

Myrna Perez – Nominee to the U.S. Court of Appeals for the Second Circuit

The Biden Administration has long telegraphed an interest in choosing judicial nominees who depart from traditional practice path, and, so far, has met this promise with their initial nominees. Myrna Perez, who made a name for herself as a prominent voting and elections scholar and litigator, fits into this pattern of nominee.

Background

Born in San Antonio to an immigrant family from Mexico, Perez received her B.A. from Yale University in 1996, an MPP from the Harvard Kennedy School in 1998, and her J.D. from Columbia Law School in 2003. After graduating, Perez clerked for Judge Anita Brody on the U.S. District Court for the Eastern District of Pennsylvania and for Judge Julio Fuentes on the U.S. Court of Appeals for the Third Circuit. After her clerkships, Perez served as a Civil Rights Fellow at the firm of Relman Dale & Colfax in Washington D.C. before joining the Brennan Center for Justice at the New York University School of Law. Perez is still with the Institute, serving as Director of the voting rights and elections program.

History of the Seat

Perez has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit. This seat was vacated by Judge Denny Chin, who moved to senior status on June 1, 2021.

Legal Career

Perez started her legal career clerking for Judge Anita Brody on the U.S. District Court for the Eastern District of Pennsylvania and then for Judge Julio Fuentes on the Third Circuit. She then spent a year working on civil rights ltiigation at Relman Colfax, where, among other matters, Perez represented the Idaho Aids Foundation in a suit against the Idaho Housing and Finance Association regarding the cut-off of funding for the former’s programming. See Idaho Aids Found., Inc. v. Idaho Hous. and Fin. Ass’n, 422 F. Supp. 2d 1193 (D. Idaho 2006).

Since 2006, Perez has been with the Brennan Center, where she has focused on suits focused on election law and voting rights. For example, Perez has part of the legal team participating as amici in a state court suit involving the voting rights of convicted felons in Alabama. See Chapman v. Gooden, 974 So. 2d 972 (Ala. 2007). She also participated as amicus in a suit challenging the at-large voting system set up by the Village of Port Chester as violative of the Voting Rights Act by diluting Hispanic votes. See United States v. Vill. of Port Chester, 704 F.Supp.2d 411 (S.D.N.Y. 2010).

More notably, Perez served as counsel for a number of plaintiff groups challenging Texas SB 14, which required photo ID in order to vote. Perez successfully persuaded a panel of the Fifth Circuit to strike down the law. See Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016). Perez also challenged SB 5, the voter ID law passed to replace SB 14, but a panel of the Fifth Circuit upheld the new law. Veasey v. Abbott, 888 F.3d 792 (5th Cir. 2018).

In other notable cases, Perez represented amici in challenges to North Carolina’s voter ID law, N.C. State Conf. of the NAACP v. Raymond, 981 F.3d 295 (4th Cir. 2020), represented plaintiffs challenging restrictions placed on felon re-enfranchisement by the Florida legislature, Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020) (en banc), and defended Pennsylvania’s mail-in-voting scheme for the 2020 elections. See Donald J. Trump v. Boockvar, 493 F. Supp. 3d 331 (W.D. Pa. 2020).

Statements and Writings

In her role at the Brennan Center, Perez has frequently written, spoken, and made media comments about issues of election law and voting rights. We summarize some of the key issues she has spoken on below.

Voter I.D.

Consistent with the litigation she has participated in, Perez has frequently spoken out in opposition to attempts to require photo ID to verify voter identity at the polls. Perez instead argues that voter integrity can be preserved without restrictive ID requirements, but instead by modernizing the registration process and improving the integrity of voting rolls. See Myrna Perez, Election Integrity: A Pro-Voter Agenda, Brennan Center for Justice, Jan. 19, 2016, https://www.brennancenter.org/our-work/policy-solutions/election-integrity-pro-voter-agenda.

Shelby County

In 2013, the U.S. Supreme Court struck down the preclearance coverage formula under Section 4(b) of the Voting Rights Act of 1965. Shelby County v. Holder, 570 U.S. 529 (2013). Both before and after the decision, Perez wrote in strong support of the preclearance formula enacted by Congress. Perez was critical of the Supreme Court’s decision to strike down the formula and urged congressional action to fix the gap.

Voter “Purges”

Perez has been sharply critical of voter “purges” in which states remove large number of voters from voter rolls en masse. Perez has called out such “purges” in Mississippi, Louisiana, Montana, Florida, Ohio, Indiana, Virginia, North Carolina, and Wisconsin, among other states. Nonetheless, Perez has spoken out supportively in favor of efforts to maintain accurate voter rolls, and has argued that states must strike the right balance between cleaning up voter rolls and not removing eligible voters. See Reid Wilson, Advocates Fear Ohio Decision Could Lead to More Voter Purges, The Hill, June 12, 2018 (quoting Myrna Perez).

Felon Enfranchisement

Perez has frequently written in support of restoring the right to vote to convicted felons. She also testified before the House Judiciary Committee in support of the For the People Act, an election reform bill which, among many provisions, restores voting rights to many Americans with felony convictions.

Overall Assessment

Because secure and accessible elections are fundamental to the health of a democracy, voting rights is an area of law that draws strong feelings from all sides. In investing her legal career in this controversial area of law, Perez likely recognizes that her nomination would draw an unusual degree of scrutiny and opposition.

Given Perez’s extensive experience litigating on the district court and appellate levels, opponents are unlikely to attack Perez’s intelligence, integrity, or skill as an attorney, but will likely instead argue that her record is too “political” to be a judge. Some senators may also argue that Perez’s specialized career does not prepare her for the spectrum of matters coming before the Second Circuit.

In short, expect virtually all Republicans to oppose Perez, but, as long as all Democrats can stay on board (likely with Senate Majority Leader Chuck Schumer championing the nomination), Perez will be confirmed in due course.

Veronica Rossman – Nominee to the U.S. Court of Appeals for the Tenth Circuit

In the history of the Tenth Circuit, only one Democratic appointee has ever been named to the court from Colorado: Judge Carlos Lucero.  With Judge Lucero’s move to senior status, Federal Defender Veronica Rossman is now poised to become the second.

Background

Rossman was born Veronica Sophia Parkansky to a Jewish family in Moscow in 1972.[1]  After getting a B.A. from Columbia University in 1993, Rossman joined the University of California Hastings Law School, graduating in 1997.  After graduating, Rossman clerked for Chief Justice A. William Maupin on the Nevada Supreme Court before joining Morrison & Foerster as a litigation associate.

In 2003, Rossman became an assistant federal defender in the Districts of Colorado and Wyoming for a year and then spent a year at Mastbaum & Moffat, and a year as a staff attorney with the U.S. Court of Appeals for the Ninth Circuit before becoming a professor at the University of Denver, Sturm College of Law.

Since 2010, Rossman has worked as a Federal Defender for the Districts of Colorado and Wyoming, serving as Senior Counsel since 2017.

History of the Seat

Rossman was tapped for a Colorado seat on the U.S. Court of Appeals for the Tenth Circuit.  The seat was vacated by Judge Carlos Lucero’s move to senior status on February 1, 2021.  

Legal Career

Rossman has held a variety of positions throughout her legal career, including as a law professor, federal defender, and attorney in private practice.  Rossman started her career as an Associate with Morrison and Foerster, where, among other matters, she represented Dr. Edward McSweegan, a National Institute of Health (“NIH”) doctor, in a cross-filed defamation lawsuit against the founders of the Lyme Disease Foundation (“LDF”).[2]

The bulk of Rossman’s career has been at the Federal Defender Service, representing indigent defendants in federal courts in Colorado and Wyoming.  Among the matters she handled with the office, Rossman represented Arlo Looking Cloud, who was charged with murdering Anna Mae Pictou-Aquash in Denver.[3] 

Much of Rossman’s work, however, has been in appellate courts.[4]  Among the notable cases she handled, Rossman successfully persuaded the Tenth Circuit to reject a probation condition allowing probation officers to require third-party notification by the defendant upon the probation officer’s determination of a threat by the defendant.[5]  In an opinion by Judge Carolyn McHugh, the Tenth Circuit agreed that the condition improperly delegated judicial power to the probation officer.[6]

In another case, Rossman argued that U.S. District Judge Philip Brimmer committed plain error in holding that the defendant’s 1992 conviction for “Sale or Transportation of Marijuana” constituted a drug trafficking felony under the sentencing guidelines.[7]  In an opinion by Judge Lucero, the Tenth Circuit agreed that Brimmer had committed plain error in finding that the offense was a “drug trafficking” offense, but affirmed on the basis that the error did not affect the defendant’s “substantive” rights.[8]

Additionally, Rossman joined a team of public defenders filing an amicus brief in Welch v. United States, asking the Supreme Court to hold that Johnson v. United States, which voided the residual clause of the Armed Career Criminal Act, should be applied retroactively.[9]  The Supreme Court agreed with Rossman’s position in a 7-1 decision (with Justice Thomas as a lone dissenter).[10]

Overall Assessment

With experience in private practice, academia, and indigent defense, Rossman appears to be qualified for a seat on the Tenth Circuit.  While she has few writings or policy positions expressed that can be triggers for opposition, some senators may nonetheless oppose Rossman on the basis on her representation of indigent defendants.  Needless to say, such opposition is unlikely to carry the day and Rossman should join the Tenth Circuit bench by the fall.

[1] Veronica S. Rossman Fact Sheet, Alliance for Justice, https://www.afj.org/document/veronica-s-rossman-fact-sheet/ (last visited Jun. 3, 2021).

[2] Vanderhoof-Forschner v. McSweegan, No. 99-1615, No. 99-1616, 2000 U.S. App. LEXIS 10682 (4th Cir. May 16, 2000).

[3] See Deborah Mendez, Judge Orders Denver Man to Face Murder Charge in South Dakota, A.P. State & Local Wire, Apr. 4, 2003.

[4] See, e.g., United States v. Paup, 933 F.3d 1226 (10th Cir. 2019); United States v. Bacon, 900 F.3d 1234 (10th Cir. 2018); United States v. Dunbar, 718 F.3d 1268 (10th Cir. 2013); United States v. Loya-Rodriguez, 672 F.3d 849 (10th Cir. 2012).

[5] United States v. Cabral, 925 F.3d 687 (10th Cir. 2019).

[6] See id. at 690.

[7] United States v. Castellanos-Barba, 648 F.3d 1130 (10th Cir. 2011).

[8] Id. at 1133.

[9] See Welch v. United States, 136 S.Ct. 1257, 1260 n. 1 (U.S. 2016).

[10] Id. at 1261.

Judge Gustavo Gelpi – Nominee to the U.S. Court of Appeals for the First Circuit

The First Circuit Court of Appeals has not seen a new judge appointed since 2014, longer than any other court of appeals.  With the death of Judge Juan Torruella in 2020, the Court now has a vacancy and a nominee, District Judge Gustavo Gelpi.

Background

Gustavo Antonio Gelpi Jr. was born in San Juan, Puerto Rico on December 11, 1965.  Gelpi received a B.A. from Brandeis University in 1987 and his J.D. from Suffolk University Law School in 1991.  After graduating, Gelpi spent two years as a law clerk for Judge Juan Perez-Gimenez on the U.S. District Court for the District of Puerto Rico before joining the Office of the Federal Public Defender in Puerto Rico.

In 1997, Gelpi joined the Puerto Rico Attorney General’s Office, becoming the Territory’s Solicitor General in 1999.  In 2001, he left the position to re-enter private practice, but the same year became a federal magistrate judge at only thirty-five. 

On April 24, 2006, Gelpi was nominated by President George W. Bush to the U.S. District Court for the District of Puerto Rico, replacing Judge Hector Laffitte.  Gelpi was unanimously confirmed by the Senate on July 20, 2006, becoming the 24th Hispanic judge appointed by Bush and breaking the record for the most number of Hispanic federal judges named by any President.[1]  Gelpi has served on the Court ever since.

History of the Seat

Gelpi has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit.  This seat opened with the death of Judge Juan Torruella, a pioneering judge who was the first from Puerto Rico to sit on the First Circuit, on October 26, 2020.  On November 13, 2020, President Trump nominated U.S. District Judge Raul Arias-Marxuach to fill the vacancy.  While Arias-Marxuach received a hearing before the Senate Judiciary Committee, he was never reported to the floor and the seat was left open at the end of the Trump Administration.

Political Activity

Gelpi has a few donations to his name, giving to members of both parties, including the Vice President Al Gore and Commissioner Luis Fortuno (Fortuno caucused with the GOP as a resident commissioner in Washington).[2]  

Legal Experience

While Gelpi has been a judge since the age of thirty-five, in his career before that, Gelpi worked in a variety of legal positions.  He started his career, like a number of Biden appointees, as a public defender, representing indigent defendants in federal court between 1993 and 1997.

Notably, as Puerto Rico Solicitor General, Gelpi argued before the First Circuit, arguing that Puerto Rico residents, as U.S. Citizens, had a right to vote in the 2000 Presidential election, even though Puerto Rico is not a state.[3]  The First Circuit rejected the lawsuit, holding that Puerto Rico residents did not have a constitutional right to vote in presidential elections.[4]

Judicial Experience

Gelpi has served as a judge for twenty years, including five as a U.S. Magistrate Judge and fifteen as a U.S. District Court Judge.  We summarize some of Gelpi’s more significant cases during this tenure below.

U.S. Magistrate Judge

Gelpi served as a U.S. Magistrate Judge from 2001 to 2006.  In this role, he handled settlement, discovery, and made recommendations on dispositive motions.  He also presided over cases where the parties consent and reviewed bail and detention motions.  Among the noteworthy matters he handled as a U.S. Magistrate, Gelpi ordered the seizure of a polar bear from the Hermanos Brothers Circus, finding that the papers for the bear indicating sale from a zoo were fraudulent.[5]

Puerto Rico Resident Rights

One theme of many of Gelpi’s rulings has been to push back against the disparate treatments of Puerto Rico residents under the law.  Early in his career as a judge, Gelpi presided over a lawsuit challenging the disparate treatment of health centers in Puerto Rico in Medicaid “wraparound” payments.[6]  In his ruling, Gelpi outlined the legal and political history of Puerto Rico to rule that it was now an “incorporated” territory of the U.S. and thus was entitled to protection from “discriminatory federal legislation.”[7]  Similarly, in a ruling upheld by the First Circuit, Gelpi also found that Puerto Rico residents could not be discriminated against in Social Security Supplemental Disability benefits.[8]

Gay Marriage

In 2016, shortly after the Supreme Court ruled that states cannot ban same-sex marriage in Obergefell v. Hodges, Judge Juan Perez-Gimenez ruled that the Obergefell decision did not apply to Puerto Rico and that the territory’s ban on gay marriage remained in effect.[9]  The ruling was appealed to the First Circuit, who promptly reversed and reassigned the case to Gelpi, ruling that Perez-Gimenez’s ruling “errs in so many respects that it is hard to know where to begin.”[10]  On April 11, 2016, Gelpi issued a declaratory judgment invalidating Puerto Rico’s same sex marriage ban under Obergefell.[11]

Sony Entertainment and Copyright

In 2015, Gelpi ruled that Luis Adrian Cortes-Ramos, a songwriter who entered a music video contest held by Sony, was compelled to arbitrate his intellectual property suit against them.[12]  His ruling was ultimately upheld by the First Circuit, in an opinion by Judge Juan Torruella.

Writings

Both before and after taking the bench, Gelpi has written extensively on the law, including pieces in Spanish and English.  Among the topics on which Gelpi has written are the Confederate judiciary during the American Civil War,[13] the Insular Cases,[14] and maritime law.[15]  For example, in an article early in his career, Gelpi details the history of Puerto Rico law that permits the U.S. Congress to allow the territory to supersede federal maritime law.[16]

Overall Assessment

With two decades as a federal judge, Judge Gelpi comes to his First Circuit nomination with more federal judicial experience than any nominee since Judge Julie Carnes was appointed in 2014.  This experience necessarily dictates a large number of rulings, some controversial, that are likely to be closely scrutinized in order to determine confirmation.  In particular, Gelpi may draw questions related to his writings and rulings on the disparate treatment of Puerto Rico under the law, as well as his participation in the suit to have Puerto Ricans vote in the 2000 Presidential election.

Nonetheless, Gelpi certainly has the requisite experience for the bench, and as a mid-50s judge nominated by a Republican President, some Republicans may feel that Gelpi is the best they can get from the Biden Administration. Ultimately, how many Republican votes Gelpi gets may be a good indication of how much bipartisan support the Administration’s nominees can expect. If senators oppose Gelpi, they are unlikely to support any Biden nominee.

[1] Ken Herman, Bush Has Appointed More Hispanic Federal Judges Than Past Presidents, Cox News Service, Sept. 21, 2017.

[2] See Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=gustavo+gelpi&cycle=&state=&zip=&employ=&cand= (last visited May 23, 2021).

[3] Martin Finucane, Federal Appeals Court Hears Arguments in Puerto Rico Vote Case, A.P. State & Local Wire, Oct. 5, 2000.

[4] See Iguarta de la Rosa v. United States, 229 F.3d 80, 83 (2000) (per curiam).

[5] Luis Varela, Federal Authorities Remove Polar Bear From Mexican Circus in Puerto Rico, A.P. Int’l, Mar. 6, 2002.

[6] See Consejo de Salud Playa De Ponce v. Perez-Pordomo, 556 F. Supp. 2d 76 (D.P.R. 2008).

[7] See id. at 105.

[8] See United States v. Vaello-Madero, 956 F.3d 12 (1st Cir. 2020).

[9] Becky Bratu, Judge Upholds Same-Sex Marriage Ban in Puerto Rico, NBC News, Mar. 8, 2016, https://www.nbcnews.com/news/us-news/judge-upholds-same-sex-marriage-ban-puerto-rico-n534556.

[10] See Chris Geidner, Federal Appeals Court: Yes, Puerto Rico’s Same-Sex Marriage Ban is Unconstitutional, BuzzFeed, Apr. 7, 2016, https://www.buzzfeednews.com/article/chrisgeidner/federal-appeals-court-yes-puerto-ricos-same-sex-marriage-ban.

[11] See Conde-Vidal v. Garcia Padilla, No. 3:14-cv-01253 (D.P.R. Apr. 11, 2016).

[12] See Cortes-Ramos v. Sony Corp. of America, No. 14-1578 (D.P.R. 2015).

[13] See Hon. Gustavo A. Gelpi, El Poder Judicial Federal De Los Estados Confederados de America Durante El Periodo de la Guerra Civil (1861-1865), 46 Rev. D.P. 1 (2006).

[14] Gustavo A. Gelpi, Los Casos Insulares: Un Estudio Historio Comparativo de Puerto Rico, Hawaii Y Las Islas Filipinas, 45 Rev. Jur. U.I.P.R. 215 (August-May, 2010-2011).

[15] Gustavo A. Gelpi, Jr., The Maritime Law of Puerto Rico, 28 J. Mar. L. & Com. 647 (October 1997).

[16] Id. 

Eunice Lee – Nominee to the U.S. Court of Appeals for the Second Circuit

With three vacancies pending on the Second Circuit, President Biden is getting his own chance to put a stamp on the influential court. His first pick is longtime federal defender Eunice Lee.

Background

Eunice C. Lee received her B.A. from Ohio State University in 1993 and her J.D. from Yale Law School in 1996. After graduating, Lee clerked for Judge Susan Dlott on the U.S. District Court for the Southern District of Ohio and for Judge Eric Clay on the U.S. Court of Appeals for the Sixth Circuit. After her clerkships, Lee joined the Office of the Appellate Defender in New York City, where she worked until 2019.

History of the Seat

Lee has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit. This seat was vacated by Judge Robert Katzmann, who moved to senior status on January 21, 2021.

Legal Career

Lee has spent virtually her entire legal career at the Office of the Appellate Defender, starting as a Staff Attorney, and moving on to a supervisory role. At the Office of the Appellate Defender, Lee represented indigent defendants in appellate proceedings in New York state and federal courts.

Among the cases she has handled in state court, Lee represented Ramon Roche, who was convicted of stabbing his common-law wife, Lillian Rivera, 12 to 14 times in the course of a violent struggle (Rivera passed away due to the injuries). See People v. Roche, 772 N.E.2d 1133 (N.Y. 2002). Lee successfully persuaded an appellate panel that the trial judge had erred in failing to instruct the jury regarding the affirmative defense of extreme emotional disturbance based on Rivera’s allegedly abusive behavior, and a divided panel reversed the conviction. See People v. Roche, 286 A.D.2d 290 (N.Y. App. Div. 2001). However, the New York Court of Appeals (despite its name, New York’s highest appellate court) reversed, holding that the defendant was not entitled to the instruction because the evidence was not sufficient to meet either element of the defense. See People v. Roche, 772 N.E.2d 1133 (N.Y. 2002).

Lee has also handled a number of appeals in the Second Circuit, the court she hopes to join. Recently, Lee represented Mahyoub Molhi Mohamed Houtar in challenging the constitutionality of the International Parental Kidnapping Crime Act (“IPKCA”). United States v. Houtar, 980 F.3d 268. Specifically, Lee argued that the IPKCA was intended to punish parents who absconded with their children to another country and was unconstitutionally vague as applied to Houtar, whose children were in Yemen for years before their mother petitioned a New York court for custody. See id. at 273. A panel of the Second Circuit rejected the challenge, holding that the statute provided sufficient notice that Houtar’s conduct was illegal, and that it specifically criminalized “retention” of children in addition to abduction. Id. at 275.

Overall Assessment

Having spent virtually her entire legal career representing indigent defendants, Lee brings an unusual background to the biglaw-dominated Second Circuit bench. While some senators may hold her representation of those convicted of crimes against her, Lee has little in her background that is likely to imperil her confirmation.

Candace Jackson-Akiwumi – Nominee to the U.S. Court of Appeals for the Seventh Circuit

Seventh Circuit Nominee Candace Jackson-Akiwumi is an unusual appellate candidate in many ways. If confirmed, she would be the youngest judge appointed to the Seventh Circuit since Judge Frank Easterbrook was appointed in 1985. She would also be the first African American judge on the court since Judge Ann Claire Williams was appointed in 1999. Additionally, her background as a federal public defender fits within President Biden’s call for appointing more public defenders and civil rights attorneys to the federal bench.

Background

Jackson-Akiwumi was born in Norfolk, Virginia in 1979. Both of Jackson-Akiwumi’s parents were judges, with her father serving as a U.S. District Judge on the Eastern District of Virginia, and her mother serving as a state trial judge in Norfolk.  Jackson-Akiwumi graduated with honors from Princeton University in 2000 and from Yale Law School in 2005.[1]  After graduating, Jackson-Akiwumi clerked for Judge David Coar on the U.S. District Court for the Northern District of Illinois and for Judge Roger Gregory on the U.S. Court of Appeals for the Fourth Circuit.[2]

After her clerkships, Jackson-Akiwumi joined the Chicago office of Skadden, Arps, Slate, Meagher, & Flom as a litigation associate.  In 2010, Jackson-Akiwumi joined the Federal Public Defender’s Office in Chicago.  In 2020, Jackson-Akiwumi moved to become a Partner with the Washington D.C. office of Zuckerman Spaeder, where she currently works.

History of the Seat

Jackson-Akiwumi has been nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit.  The seat opened on November 30, 2020 when Judge Joel Flaum moved to senior status.  As the seat opened late in the Trump Administration, no nominee was put forward for the vacancy.  On December 30, 2020, incoming Senate Judiciary Chair Richard Durbin reached out to Jackson-Akiwumi to gauge her interest in a judicial appointment.[3]  After a meeting with President Biden and White House Counsel Dana Remus, Jackson-Akiwumi’s appointment was announced on March 30, 2021.

Legal Career

Setting aside her clerkships, Jackson-Akiwumi’s career can be split into her time at Skadden Arps, her time as a federal public defender, and in her current role at Zuckerman Spaeder.  

Skadden Arps Slate Meagher & Flom

In 2007, Jackson-Akiwumi joined Skadden, Arps, Slate, Meagher, & Flom as a litigation associate.  In this role, Jackson-Akiwumi primarily worked in complex civil litigation.  While at the firm, Jackson-Akiwumi tried one case before a jury as sole counsel and argued one appeal before the Seventh Circuit.[4]  The appeal she argued involved a challenge to the probable cause supporting the traffic detention that led to her client’s conviction (the challenge was rejected by the Seventh Circuit).[5]

Federal Public Defender

In 2010, Jackson-Akiwumi became a staff attorney with the federal defender program in the Northern District of Illinois, where she represented indigent defendants in the Chicago-based federal courts.  In her ten years with the office, Jackson-Akiwumi tried seven cases to a jury and argued five appeals to the Seventh Circuit.[6]

Among her notable cases with the Office, Jackson-Akiwumi worked with the University of Chicago’s Federal Criminal Justice Clinic to challenge alleged Racially Selective prosecution practices from the U.S. Attorney’s Office in Chicago.[7] Judge Ruben Castillo, in his ruling in one of the cases where the challenge was raised, chastised the use of “stash-house stings” to pursue federal gun charges, but declined to dismiss the charges against the defendant, finding that he had failed to meet the “high burden” of dismissal.[8]

Zuckerman Spaeder

Since 2020, Jackson-Akiwumi has been a Partner with the Washington D.C. office of Zuckerman Spaeder, where she handles White Collar defense and investigations work.

Overall Assessment

As an appellate nominee in her early 40s, Jackson-Akiwumi has the potential to be a federal judge for the next four decades.  This longevity gives her a unique ability to shape the jurisprudence of the Seventh Circuit.  It also makes her a potential future Supreme Court candidate.  These factors are likely to draw opposition, even though there is little controversy in her background to coalesce opposition around.

As a bottom line, as long as Democrats stick together, Jackson-Akiwumi should be confirmed for the Seventh Circuit in due course, and given her support from Senate Judiciary Chair Durbin, she is likely to be.

[1] Sen. Comm. on the Judiciary, 117th Cong. Candace Jackson-Akiwumi: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] See id. at 31.

[4] See id. at 18.

[5] See United States v. Garcia-Garcia, 633 F.3d 608 (7th Cir. 2011).

[6] See Jackson-Akiwumi, supra n.1 at 19.

[7] See United States v. Brown, No. 12 CR 632-1, 2018 WL 1278577 (N.D. Ill. Mar. 12, 2018) (Castillo, J.).

[8] See United States v. Brown, 299 F. Supp. 3d 976 (N.D. Ill. 2018) (Castillo, J.).

Tiffany Cunningham – Nominee to the U.S. Court of Appeals in the Federal Circuit

The Federal Circuit is the only federal appellate court that has never had an African American judge serving on it.  President Biden’s nomination of Chicago litigator Tiffany Cunningham, however, fixes this aberration while adding a seasoned patent litigator to the court.

Background

Tiffany P. Cunningham received a B. Sc. from Massachusetts Institute of Technology in 1998 and received a J.D. from Harvard Law School in 2001.  After graduating, Cunningham clerked for Judge Timothy Dyk on the U.S. Court of Appeals for the Federal Circuit.

After her clerkship, Cunningham joined the Chicago office of Kirkland & Ellis as an Associate.  In 2007, Cunningham became a Partner with the firm.  In 2014, she shifted to become a Partner with Perkins Coie, where she currently works.

History of the Seat

Cunningham has been nominated for a seat on the U.S. Court of Appeals for the Federal Circuit.  The seat will open on May 31, 2021 when Judge Evan Wallach moves to senior status.

Political Activity

As of 2021, Cunningham has donated relatively rarely to political candidates, making a contribution to President Obama in 2012, and to Hillary Clinton in 2016.[1]

Legal Career

After her clerkship on the Federal Circuit, Cunningham has spent the next twenty years of her career as a patent litigator, serving this role both at Kirkland & Ellis and at Perkins Coie.  Between these two positions, Cunningham has represented plaintiffs and defendants across the country in patent litigation.  

For example, while at Kirkland & Ellis, Cunningham was part of the legal team for Caterpillar, Inc. who successfully persuaded the Federal Circuit to reverse a jury decision finding that the company had misappropriated trade secrets and breached its contract.[2]  On the district court level, Cunningham defended Syngenta Crop Protection LLC in a patent infringement lawsuit brought by Bayer Cropscience Inc.[3]  

Similarly, while at Perkins Coie, Cunningham represented Intel Corp. before the Delaware Chancery Court in a dispute over the technology used in Wi-Fi products.[4]  

Overall Assessment

Perhaps because of the court’s specialized docket, nominees to the Federal Circuit don’t usually attract the same degree of controversy as nominees to the other courts of appeals.  Cunningham, who has extensive experience in the court’s IP-heavy docket, is unlikely to break this pattern, and will likely be confirmed with broad support.

[1]Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=Tiffany+Cunningham&cycle=&state=IL&zip=&employ=&cand= (last visited Apr. 3, 2021).

[2]See Caterpillar Inc. v. Sturman Indus., 387 F.3d 1358 (Fed. Cir. 2004).

[3] See Bayer Cropscience, Inc. v. Syngenta Crop Prot. LLC, 979 F. Supp. 2d 653 (M.D.N.C. 2013).

[4] See Jeff Montgomery, Intel Wins Early Round in Chancery Suit Over Sanyo License, Law 360, Mar. 1, 2021. See also Sanyo Elec. Co. Ltd. v. Intel. Corp., C.A. No. 2018-0723-MTZ, 2021 Del. Ch. LEXIS 35 (Del. Ch. Feb. 26, 2021).

Judge Ketanji Brown Jackson – Nominee to the U.S. Court of Appeals for the D.C. Circuit

For the last eight years, Judge Ketanji Brown Jackson has served on the U.S. District Court in Washington D.C., making her mark in a number of prominent cases, and making a presidential shortlist for the Supreme Court twice.  As she is now nominated to the prestigious D.C. Circuit, a potential Supreme Court nomination becomes even more likely.

Background

A D.C. native, Jackson was born Ketanji Onyika Brown on September 14, 1970, the daughter of an attorney and a school principal.  Jackson graduated magna cum laude from Harvard University in 1992 and from Harvard Law School in 1996.[1]  After graduating, Jackson clerked for Judge Patti Saris on the U.S. District Court for the District of Massachusetts and for Judge Bruce Selya on the U.S. Court of Appeals for the First Circuit before clerking for Justice Stephen Breyer on the U.S. Supreme Court.[2] 

After her clerkships, Jackson joined the Boston office of Goodwin Proctor as an Associate.[3]  In 2002, Jackson moved back to D.C. to work for The Feinberg Group, LLP as an Associate, but moved just an year later to the U.S. Sentencing Commission to be Assistant Special Counsel.[4] 

In 2005, Jackson joined the Federal Public Defender’s Office in Washington D.C.[5]  Two years later, Jackson moved to the D.C. Office of Morrison & Foerster as Of Counsel.

In 2010, Jackson was nominated by President Obama and confirmed by the U.S. Senate to the U.S. Sentencing Commission.  She served there until her 2013 confirmation to the U.S. District Court for the District of Columbia, where she currently serves.

History of the Seat

Jackson has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit.  She will either fill the seat opened by the confirmation of Judge Merrick Garland to be U.S. Attorney General on March 10, 2021, or the vacancy opened by Judge David Tatel’s move to senior status upon the confirmation of his successor.

Political Activity

In 2008, Jackson gave $400 to President Obama’s campaign.[6]  Additionally, Jackson volunteered as an election poll monitor for the Obama campaign in the primaries and the general election.[7] 

Legal Career

Setting aside her clerkships, Jackson’s pre-bench career can largely be divided into three categories: working on sentencing with the U.S. Sentencing Commission; working as a federal public defender; and working in private practice.  

U.S. Sentencing Commission

From 2010 to 2013, Jackson served as a Commissioner on the U.S. Sentencing Commission, an independent agency that creates the guidelines used by federal judges in sentencing after conviction.  Jackson had previously served as a staffer with the Commission from 2003 to 2005.  As a Commissioner, Jackson worked on criminal sentencing policy, including working with the federal judiciary on changes to the guidelines.  

Federal Public Defender

Between 2005 and 2007, Jackson worked as a Federal Public Defender in the District of Columbia.[8]  During this time, Jackson had around ten appearances in federal court, including arguments before the D.C. Circuit.[9]  Among her more significant cases, Jackson was able to get the D.C. Circuit to overturn a conviction for felon in possession of a firearm based on improper voir dire by the district judge.[10] 

Private Practice

Jackson has had a number of stints in private practice, including from 1998 to 1999, 2000 to 2003, and 2003 to 2007.[11]  In these roles, Jackson worked on civil litigation at both the trial and appellate levels.  For example, Jackson successfully convinced the D.C. Court of Appeals to reverse a $350,000 civil forfeiture award against the Washington Light Gas Company.[12]  Jackson also represented the non-profit Rails-to-Trails Conservancy in litigation regarding government use of abandoned railroad corridors and conversion to public spaces.[13] 

Jurisprudence

Since her unanimous confirmation in 2013, Jackson has served as a federal district judge on the U.S. District Court for the District of Columbia.  In this capacity, Jackson has presided over a number of newsworthy cases.  Some of the key ones are summarized below.

U.S.D.A. Country of Origin Labels

Early in her tenure on the bench, Jackson presided over a challenge of the U.S. Department of Agriculture’s rule requiring meat to be labeled with country of origin.[14]  Jackson denied a preliminary injunction against the rule, finding that the rule could not cause irreparable damage to the plaintiff meatpackers.[15] 

H.H.S. Teen Pregnancy Prevention Program

In 2018, Jackson reviewed a suit brought by Texas nonprofit Healthy Futures of Texas after five-year-grants for anti-teen pregnancy programs offered by the U.S. Department of Health and Human Services were terminated two years early.[16]  Jackson ruled that the early termination was “arbitrary and capricious” joining four other district court judges in so ruling.[17] 

Border Wall Waiver

In 2019, Jackson dismissed a lawsuit brought against the Trump Administration’s decision to waive environmental laws in building its border wall.[18]  Jackson ruled that she lacked jurisdiction over the claims under the Illegal Immigration Reform and Immigrant Responsibility Act.[19] 

Expansion of “Fast Track” Deportations

In 2019, Jackson enjoined a U.S. Department of Homeland Security rule that expanded the use of “fast track” deportation procedures, allowing immigrants to be deported with more limited procedural protections.[20] Jackson ruled that the agency rule was “arbitrary and capricious” and that the agency violated the Administrative Procedure Act by not seeking public comment before issuing the rule.[21] 

House Judiciary Subpoenas Against Don McGahn

In 2019, Jackson reviewed a lawsuit filed by the House Judiciary Committee seeking to compel the testimony of former White House Counsel Don McGahn.[22]  Jackson rejected the Administration’s claims of absolute privilege, ruling that McGahn could be compelled to testify.[23]  In February 2020, a 2-1 panel of the D.C. Circuit overturned Jackson’s ruling, finding that the Separation of Powers prevented the House from compelling testimony from the Executive Branch.  However, the full D.C. Circuit vacated the panel decision and affirmed Jackson’s original decision on a 7-2 vote.[24] 

Overall Assessment

Given her stellar academic credentials (including a prestigious Supreme Court clerkship) and her tenure on the district court, Ketanji Jackson has a distinguished record for the appellate bench.  Furthermore, if confirmed, Jackson would be primed for a history-making nomination to the Supreme Court.

However, it is that trajectory to the high court that is likely to make Jackson controversial.  Critics may point to Jackson’s rulings against the Trump Administration and in favor of endorsing the McGahn subpoena to argue that she is too liberal to sit on the D.C. Circuit. In contrast, her supporters will likely note that Jackson has sided with the Trump Administration in a number of suits as well, including the suit over the Board Wall, and that her overall record is respected in the legal community.

In the end, Jackson has the advantage of a narrow Democratic majority in the U.S. Senate.  Assuming the caucus holds together, she will likely be confirmed in due course.


[1]See Sen. Comm. on the Judiciary, 113rd Cong., Ketanji Brown Jackson: Questionnaire for Judicial Nominees 1.

[2]Jackson’s clerk class included 7th Circuit Judge Michael Scudder, Texas Supreme Court Justice Brett Busby, and appellate superstar Kannon Shanmugam. 

[3] See Jackson, supra n. 1 at 2.

[4] Id.

[5]See Sen. Comm. on the Judiciary, 113rd Cong., Ketanji Brown Jackson: Questionnaire for Judicial Nominees 1.

[7] See Jackson, supra n. 1 at 20.

[8] Id. at 23.

[9]See id. at 24.

[10] United States v. Littejohn, 489 F.3d 1335 (D.C. Cir. 2007). 

[11] See Jackson, supra n. 1 at 22-23.

[12] See Washington Gas Light Co. v. Pub. Service Comm’n of D.C., 982 A.2d 691 (D.C. 2009).

[13]See Ladd v. United States, No. 1:07-cv-271 (Fed. Cl., Oct. 14, 2009).

[14] Charles Abbott, New U.S. Meat Rule Survives Challenge by Meat Packers, Reuters, Sept. 11, 2013, https://www.reuters.com/article/us-usa-meat-labeling-idUSBRE98A14U20130911.

[15] See id.

[16] Jennifer Hansler, HHS Loses Another Court Battle Over Teen Pregnancy Prevention Grant Funding, CNN, June 4, 2018, https://www.cnn.com/2018/06/02/politics/hhs-teen-pregnancy-program-dc-district-court/index.html.

[17]See id.

[18] Barbara Grzincic, Trump Administration Can Waive Enviro Laws for Border Wall – Judge, Reuters, Sept. 5, 2019, https://www.reuters.com/article/border-wall-waiver-lawsuit-idUSL2N25X00X.

[19] See id.

[20] Spencer Hsu, Judge Bars Trump Fast-Track Deportation Policy, Saying Threat to Legal Migrants Was Not Assessed, Wash. Post, Sept. 28, 2019, https://www.washingtonpost.com/local/legal-issues/judge-bars-trump-fast-track-deportation-policy-saying-threat-to-legal-migrants-was-not-assessed/2019/09/28/cf3d237e-e1ed-11e9-b199-f638bf2c340f_story.html.

[21]See Josh Gerstein, Judge Blocks Trump Plan to Expand Fast-Track Deportations, Politico, Sept. 28, 2019, https://www.politico.com/news/2019/09/28/judge-blocks-trump-fast-track-deportations-007717.

[22] In re Don McGahn, 1:19-cv-02379, D.D.C. 2019.

[23] Bobby Allyn, In Blow to White House, Federal Judge Rules That Don McGahn Must Testify, Nat’l Pub. Radio, Nov. 25, 2019, https://www.npr.org/2019/11/25/782705643/federal-judge-rules-that-mcgahn-must-testify-delivering-blow-to-white-house.

[24] Josh Gerstein and Kyle Cheney, Appeals Court Rejects Key Argument Against McGahn Subpoena, Politico, Aug. 7, 2020, https://www.politico.com/news/2020/08/07/appeals-court-rules-mcgahn-must-testify-392562.

Judge Raul Arias-Marxuach – Nominee to the U.S. Court of Appeals for the First Circuit

While President Trump has had a significant impact on most of the federal courts of appeals, he has yet to appoint any judges to the U.S. Court of Appeals for the First Circuit, which has remained moderately liberal under the influence of three appointees of President Obama and the pioneering Judge Juan Torruella.  However, Judge Torruella’s untimely death in October may give President Trump a chance to place his stamp on the court.

Background

Raul Manuel Arias-Marxuach was born in San Juan, Puerto Rico in 1967.  Arias-Marxuach received his B.S. cum laude from Boston College in 1989 and his J.D. from the University of Puerto Rico School of Law in 1992.[1]  After graduating, Arias-Marxuach clerked on the Supreme Court of Puerto Rico and then received an LLM from Harvard Law School.

After receiving his LLM, Arias-Marxuach joined the San Juan firm Fiddler Gonzalez & Rodriguez P.S.C. as a Litigation Associate.[2]  In 1995, Arias-Marxuach moved to McConnell Valdes LLC.  Arias-Marxuach became an Income Partner at the firm in 1999 and a Capital Partner in 2003.[3] 

In March 2017, Arias-Marxuach was contacted by the White House after being recommended for a federal judgeship by Resident Commissioner Jenniffer Gonzalez.[4]  Arias-Marxuach was selected as the primary candidate for a vacancy on the U.S. District Court for the District of Puerto Rico in April 2017, but was not officially nominated for the next year, until April 10, 2018.  The Senate confirmed Arias-Marxuach by a 95-3 vote on May 2, 2019, and he has served as a federal judge since.

History of the Seat

Arias-Marxuach has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit.  This seat opened with the death of Judge Juan Torruella, a pioneering judge who was the first from Puerto Rico to sit on the First Circuit, on October 26, 2020.

Political Activity

Arias-Marxuach has limited political experience, having worked as a volunteer attorney for the campaign of Governor Luis Fortuno in 2008 (Fortuno caucused with the GOP as a resident commissioner in Washington).[5]  He also served as a member of the Republican National Lawyers Association.[6] 

Legal Experience

Arias-Marxuach has spent almost his entire legal pre-judicial career at the same firm, working in a variety of subject areas including maritime law, product liability, and antitrust matters.[7]  During his career, Arias-Marxuach has tried three cases to verdict before the U.S. District Court for the District of Puerto Rico.[8] 

Among the most notable cases he handled, Arias-Marxuach represented the University of Puerto Rico in seeking legal remedies against 21 student “strikers” who sought to maintain collective action against the University.[9]  The case went all the way to the Puerto Rico Supreme Court, which found that students at the University do not have the right to strike.[10]

Judicial Experience

Arias-Marxuach has served as a federal district judge for a year and a half.  During this time, he has authored only one published opinion, granting the plaintiff’s motion to remand a gross negligence action to the Puerto Rico Court of First Instance.[11]

Among other matters over which he has presided, Arias-Marxuach reviewed the plea of Trevor Leslie Doyle, a radio host convicted of trying to solicit sex from a minor.[12]  He also presided over a civil suit against the Municipality of Guynabo, alleging that the former mayor’s son, Hector O’Neill Rosa, engaged in a pattern of sexual harassment.[13]

Overall Assessment

Judge Arias-Marxuach’s confirmation to the federal bench, while slow (taking more than 2 years from recommendation to confirmation) was widely bipartisan.  His record on the bench itself is also uncontroversial.  However, no President since Jimmy Carter has seen lame-duck confirmations to the court of appeals, and it is unclear whether the eight weeks remaining until the new Administration is enough time to process Judge Arias-Marxuach’s nomination.


[1] Sen. Comm. on the Judiciary, 115th Cong., Raul Arias-Marxuach: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Id.

[4] NotiCel, New Federal Judge Candidate in PR Closely Linked to UPR Strike, NotiCel, June 12, 2017, http://www.noticel.com/ahora/new-federal-judge-candidate-in-pr-closely-linked-to-upr-strike-document/609378099.

[5] See id. at 8.

[6] See id. at 4.

[7] See id. at 1.

[8] See id. at 18.

[9] NotiCel, New Federal Judge Candidate in PR Closely Linked to UPR Strike, NotiCel, June 12, 2017, http://www.noticel.com/ahora/new-federal-judge-candidate-in-pr-closely-linked-to-upr-strike-document/609378099.

[10] See Univ. of Puerto Rico v. Labarde Torres, 180 D.P.R. 253 (P.R. 2010).

[11] See Carrillo v. Marina Puerto Del Ray Operations, LLC., 432 F. Supp. 3d 7 (D.P.R. 2019).

[12] See Radio Host Reaches Plea Agreement, Court Docs Say, The Telegraph-Journal, Jan. 11, 2020.

[13] See Judge Reserves the Ruling on Dismissal, CE Noticias Financieras English, Oct. 29, 2019.