Cindy Chung – Nominee to the U.S. Court of Appeals for the Third Circuit

Cindy Chung currently serves as the chief federal prosecutor in Western Pennsylvania, and has now been tapped to fill a vacancy on the U.S. Court of Appeals for the Third Circuit.

Background

Cindy Kyounga Chung was born in 1975 in Omaha, Nebraska. She attended Yale University, getting a B.A. in 1997. She spent two years as a Fellow at the Yale-China Association and then got a J.D. from Columbia Law School in 2002.

After law school, Chung clerked for Judge Myron Thompson on the U.S. District Court for the Middle District of Alabama and then joined the New York District Attorney’s Office. In 2009, Chung moved to the U.S. Department of Justice Civil Rights Division as a trial attorney. In 2014, Chung became a federal prosecutor with the U.S. Attorney’s Office for the Western District of Pennsylvania.

Chung was nominated in October 2021 to be U.S. Attorney for the Western District of Pennsylvania. She was confirmed by voice vote on November 19, 2021 and has served since then.

History of the Seat

Chung has been nominated to Judge D. Brook Smith’s seat on the U.S. Court of Appeals for the Third Circuit. Smith, a Republican, was appointed to the U.S. District Court for the Western District of Pennsylvania by President Ronald Reagan in 1988 and to the Third Circuit by President George W. Bush in 2002.

Legal Experience

Other than her clerkship, Chung has spent her entire legal career as a state and federal prosecutor. She started with the New York District Attorney’s Office, where she prosecuted rapper Foxy Brown for violating probation after assaulting two manicurists. Judge Wants More Info on Foxy Brown’s Ear Woes Before Deciding Whether to Let Her Out of Jail, A.P., Jan. 18, 2008. She also sought the dismissal of charges against a bicyclist who was charged with assaulting a police officer, after videotapes on Youtube showed little support for the assault. See Barbara Ross, Bicyclist in Cop-Shove Vid Pedals Away a Free Man, New York Daily News, Sept. 6, 2008.

In 2009, Chung became a trial attorney with the U.S. Department of Justice, where she litigated civil rights cases around the country. In one case, Chung prosecuted police officers involved in the cover-up after the Danziger Bridge shootings in New Orleans. See Michael Kunzelman, Ex-Cop Says He Helped Cover Up Katrina Shootings, A.P., July 11, 2011. In another notable case, Chung prosecuted a Pennsylvania police officer for tasering an inmate while he was banging his head against the cell door. See Rich Lord, Millvale Police Officer Pleads Not Guilty: Says Plaintiff Was on ‘Substance’, Pittsburgh Post-Gazette, June 25, 2014. This prosecution went to trial, which resulted in the officer being convicted of civil rights violations. See Brian Bowling, Jurors Convict Officer of Civil Rights Violation, Pittsburgh Tribune Review, Nov. 20, 2014.

In 2014, Chung began serving as a federal prosecutor in Pittsburgh, where, among other cases, she brought to the judge’s attention that the defendant’s counsel was sleeping through large portions of the trial, leading to a mistrial. See Joe Mandak, Man Gets New Trial for Mortgage Fraud Because of Sleeping Lawyer, A.P., May 2, 2017. She also prosecuted felon in possession cases. See Adam Brandolph, Jury Weighs Gun Charges Against Baldwin Felon, Pittsburgh Tribune Review, May 21, 2015.

Additionally, Chung prosecuted Ryan Kyle under the 2009 Shepard-Byrd Hate Crimes Prevention Act based on his assault of a black man at a Pittsburgh subway station. See Torsten Ove, Defendant to Serve Concurrent Prison Time for Federal Hate Crime, Pittsburgh Post-Gazette, Feb. 24, 2017. She similarly prosecuted Jeffrey Burgess for beating up an Indian man at a Red Robin. See Torsten Ove, Bethel Park Man Guilty in Hate Crime Beating of Indian Man, Pittsburgh Post-Gazette, Nov. 29, 2017. The two prosecutions were the first two ever to be brought in the Western District under the Shepard-Byrd Act. See id.

In 2021, President Joe Biden appointed Chung to be U.S. Attorney for the Western District of Pennsylvania. After she was unanimously confirmed by the Senate, Chung took charge of the federal prosecutions in Western Pennsylvania. While U.S. Attorney, Chung’s office indicted Zachary Dinell and Tyler Smith under the Shepard-Byrd Act for abusing residents of a special needs facility. See Torsten Ove, Pair Indicted on Hate Crime Charges; Prosecutors: Former Caretakers Beat Patients, Pittsburgh Post-Gazette, Mar. 26, 2022.

Overall Assessment

Unlike Biden’s other Pennsylvania nominee to the Third Circuit, Chung has the support of both her home-state senators for elevation. That, combined with her painless and swift confirmation to her current post, makes it fairly likely that Chung will join the Third Circuit by the end of the Congress.

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

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

Background

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

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

History of the Seat

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

Legal Experience

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

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

Jurisprudence

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

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

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

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

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

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

Overall Assessment

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

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

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

Background

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

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

History of the Seat

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

Political Activity

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

Legal Experience

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

A summary of her other key cases follows:

Mask Mandates

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

2020 Election

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

Voting Laws

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

Redistricting

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

Labor Law

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

School Vouchers

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

Marijuana

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

Writings and Statements

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

Overall Assessment

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

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

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

Background

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

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

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

History of the Seat

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

Legal Career

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

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

Jurisprudence

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

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

Writings

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

Overall Assessment

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

Brad Garcia – Nominee to the U.S. Court of Appeals for the D.C. Circuit

The D.C. Circuit is frequently home to future SCOTUS superstars, with three Justices having been former D.C. Circuit judges, a fourth having been a D.C. Circuit nominee, and a D.C. Circuit judge waiting to join the high court in a few days. As such, it’s been a matter of some controversy that the court has never had a single hispanic judge. The last hispanic nominee to the court, Miguel Estrada, was never confirmed and no president of either party chose to fill that gap for the last twenty years. However, President Biden’s nomination of Bradley Garcia could add a young, dynamic voice to the court who would also be the first Hispanic on the bench.

Background

The 35-year-old Garcia received a B.A. from Johns Hopkins University in 2008 and a J.D. from Harvard University in 2011. After law school, Garcia clerked for Judge Thomas Griffith on the U.S. Court of Appeals for the D.C. Circuit and then clerked for Justice Elena Kagan on the U.S. Supreme Court.

In 2013, Garcia joined O’Melveny & Myers as an Associate and became a Partner in 2021. In 2022, he moved to become Deputy Assistant Attorney General with the Department of Justice where he currently serves.

History of the Seat

Garcia has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit to be vacated on September 1, 2022 by Judge Judith Wilson Rogers.

Legal Experience

After his clerkships, Garcia joined O’Melveny & Myers as an associate, and transitioned into becoming a partner in 2021. At the firm, Garcia largely worked in commercial litigation, focusing largely on appellate litigation.

For example, Garcia represented Google before the Federal Circuit in litigation involving patents that Google had convinced the Patent Trial and Appeal Board (“PTAB”) to limit. See Nadia Dreid, Federal Circuit Mulls Overturning Google Victories at PTAB, Law360, Feb. 3, 2021. The PTAB decision was upheld by the Federal Circuit in per curiam opinions. See Andrew Karpan, Fed. Circ. Quickly Signs Off on Google PTAB Wins, Law360, Feb. 4, 2021.

Notably, Garcia represented Samsung and LG in suits involving patent infringement that were filed before Judge Alan Albright in the U.S. District Court for the Western District of Texas. See Ryan Davis, Fed. Circ. Faults Albright’s OK of Patent ‘Venue Manipulation’, Law360, June 30, 2021. Garcia was able to get mandamus from the Federal Circuit to move the case from Albright’s courtroom, successfully arguing that the plaintiffs in the case were attempting to manipulate venue to find a favorable judge See id. An effort to seek en banc review of the grant of mandamus by the plaintiffs failed as well. See Dani Kass, Full Fed. Circ. Won’t Review ‘Venue Manipulation’ Ruling, Law360, Aug. 31, 2021.

Garcia later pushed the Federal Circuit to move another suit from Albright’s courtroom involving Google. See Tiffany Hu, Albright Keeps Making Same Mistakes, Google Tells Fed. Circ., Law360, Oct. 18, 2021. Albright granted the transfer in November 2021, while criticizing the Federal Circuit for “muddled” rulings. See Dani Kass, Albright Gets Defensive While Allowing Google Transfer, Law360, Nov. 8, 2021.

As part of his pro bono work, Garcia argued one case before the U.S. Supreme Court. See United States v. Palomar-Santiago, 593 U.S. __ (2021). The question in the case was whether, under 8 U.S.C. 1326(d), an immigrant who was deported under an erroneous classification of his conviction as a “crime of violence”, needs to establish an additional two elements in order to secure relief from deportation. In a unanimous opinion by Justice Sonia Sotomayor, the Supreme Court ruled against Garcia’s client and found that all three elements were required by the statute even if the immigrant could establish that his deportation was conducted under an erroneous classification of his conviction. See id. In another case, he was part of the legal team representing El Paso County in a suit challenging the diversion of Department of Defense funds to build a border wall. See Daniel Wilson, High Court Vacates Border Wall Case After Construction Halt, Law360, July 2, 2021.

In February 2022, Garcia joined the Department of Justice as Deputy Assistant Attorney General for the Office of Legal Counsel, responsible for advising on the legality of executive actions. See Justin Wise, O’Melveny Appellate Atty Takes Senior DOJ Legal Office Gig, Law360, Feb. 8, 2022.

Overall Assessment

When Justin Walker was nominated to the D.C. Circuit two years ago, the 38-year-old was criticized by some for being too young to join the court. Garcia, at 35, is even younger. However, unlike Walker who spent most of his legal career as an academic, Garcia has extensive experience with litigation, having argued multiple appeals, including at the Supreme Court.

However, it is nonetheless likely that Garcia’s youth is likely to be a strong motivator for opposition to his nomination. While Garcia is still more likely than not to join the bench (given that Republicans had oked the even younger Kathryn Mizelle to the bench two years ago), his confirmation is nonetheless likely to be a fight.

Judge Doris Pryor – Nominee to the U.S. Court of Appeals for the Seventh Circuit

Judge Doris Pryor, who has served as a federal magistrate judge on the Southern District of Indiana for the past five years, has been tapped for an appellate judgeship on the Seventh Circuit.

Background

Born in Hope, Arkansas, Pryor attended the University of Central Arkansas, getting a B.Sc. in 1999. She continued on to Indiana University Maurer School of Law, getting her J.D. in 2003.

After graduating law school, Pryor clerked for Judge Lavenski Smith on the U.S. Court of Appeals for the Eighth Circuit and for Judge J. Leon Holmes on the U.S. District Court for the Eastern District of Arkansas. Pryor then spent a year as a public defender in Arkansas before becoming a federal prosecutor with the Southern District of Indiana.

In 2017, Pryor was appointed to be a U.S. Magistrate Judge for the U.S. District Court for the Southern District of Indiana.

History of the Seat

Pryor has been nominated for an Indiana seat on the U.S. Court of Appeals for the Seventh Circuit. This seat opened when Judge David Hamilton indicated his intention to take senior status upon confirmation of a successor.

Legal Career

Other than a year as a public defender, Pryor has spent her entire career pre-bench as a federal prosecutor in Southern Indiana.

Among the notable cases she has handled, Pryor has handled a number of appeals before the Seventh Circuit. See United States v. Hawkins, 480 F.3d 476 (7th Cir. 2007). For example, Pryor unsuccessfully sought to defend an Armed Career Criminal Act enhancement for a defendant convicted of felon in possession. United States v. Smith, 544 F.3d 781 (7th Cir. 2008). In another case that Pryor presented to the Seventh Circuit, the court remanded for further fact-finding on a Batson challenge after the only two African American jurors on a venire were struck. See United States v. Rutledge, 648 F.3d 555 (7th Cir. 2011).

Political Activity

Pryor has a single political contribution to her name, to Indiana gubernatorial candidate John Gregg in 2016.

Jurisprudence & Reversals

Since 2017, Pryor has served as a U.S. Magistrate Judge in Indianapolis. In this role, she presides over settlement, preliminary hearings, bail, and any cases where the parties consent to her jurisdiction. Among the notable cases that Pryor has handled as a magistrate, she denied a motion by attorneys for the City of Indianapolis to strike expert testimony brought by a plaintiff who was attacked by a police dog while sitting in his backyard. See Mitchum v. City of Indianapolis, 534 F. Supp. 3d 1001 (S.D. Ind. 2021). In another case, she granted a defense motion to strike the testimony of the plaintiff’s expert, an oncologist who sought to discuss the standard of care in radiology. Lyons v. United States, 550 F. Supp. 3d 588 (S.D. Ind. 2021).

Overall Assessment

Judge Pryor enters the confirmation process with the support of Sen. Todd Young, one of Indiana’s Republican senators. This support should go a long way in smoothing the road for her, even if Indiana’s other senator, Sen. Michael Braun, chooses to oppose her.

As such, barring the unexpected, it is likely that Judge Pryor will be confirmed in the next few months.

Rachel Bloomekatz – Nominee to the U.S. Court of Appeals for the Sixth Circuit

In 2019, the Trump Administration nominated former Jones Day attorney Chad Readler to the Sixth Circuit. Now, the Biden Administration is seeking to tap one of Readler’s old associates, Columbus attorney Rachel Bloomekatz.

Background

Born December 3, 1982, Rachel Bloomekatz received a B.A. magna cum laude from Harvard University in 2004 and a J.D. from UCLA Law School in 2008 before clerking for Judge Guido Calabresi on the U.S. Court of Appeals for the Second Circuit and for Chief Justice Margaret Marshall on the Massachusetts Supreme Judicial Court. She then spent a year at the Massachusetts Attorney General’s Office before clerking for Justice Stephen Breyer on the U.S. Supreme Court.

Bloomekatz then spent two years at Jones Day before becoming a principal at the civil rights firm Gupta Wessler PLLC. Since 2019, Bloomekatz has been a solo practitioner at Bloomekatz Law LLC.

History of the Seat

Bloomekatz has been nominated for an Ohio seat on the U.S. Court of Appeals for the Sixth Circuit. This seat opened in December 2021 with Judge Ransey Guy Cole’s announcement that he would move to senior status upon confirmation of a successor. Bloomekatz was nominated on May 25, 2022.

Legal Experience

Bloomekatz started her career as an associate at Jones Day. While at the firm, she worked with future Sixth Circuit Judge Chad Readler in challenging the granting of class certification to a series of suits brought against Proctor & Gamble for alleged deceptive marketing of probiotic digestive supplements. See Rikos v. P.G., 799 F.3d 497 (6th Cir. 2015). The grant was affirmed 2-1 by the Sixth Circuit. See id.

From 2016 to 2019, Bloomekatz worked as a principal at Gupta Wessler PLLC. At Gupta Wessler, Bloomekatz particularly worked on a number of election law cases, including successfully suing to allow 17 year olds to vote in the 2016 primary elections. See Tom LoBianco, In Victory for Sanders, Ohio Judge Says 17-Year-Olds Can Vote in Primary, CNN, Mar. 11, 2016. Bloomekatz’s expertise in election law also resulted in her appointment by the Sixth Circuit as amicus. See In re 2016 Primary Election, 836 F.3d 584, 586 (6th Cir. 2016) (Sutton, J.) (noting that Bloomekatz “admirably” defended the district court order after appointment from the court).

Additionally, Bloomekatz represented Brandon Moore in challenging a sentence of 112 years in prison for a series of convictions arising from an incident when he was 15 years old. Andrew Welsh-Huggins, Teen Rapist Given 112-Year Sentence Appeals to Top Court, A.P., Feb. 4, 2015. The Ohio Supreme Court struck down the sentence as unconstitutional in a 4-3 vote. See Andrew Welsh-Huggins, Ohio Supreme Court Rejects Teen Rapist’s 112-Year Sentence, A.P., Dec. 22, 2016.

Bloomekatz also represented the American Cancer Society Cancer Action Network in multiple suits involving harms from tobacco, see Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169 (11th Cir. 2017), and beverages. See Am. Bev. Ass’n v. City & Cty. of San Francisco, 916 F.3d 749 (9th Cir. 2019) (en banc).

Since 2019, Bloomekatz has served as a solo practitioner based in Columbus. During her time as a solo practitioner, Bloomekatz has notably represented parents in a suit against the Madison Local School District over their plan to arm teachers without conducting law enforcement training otherwise required. See Gabbard v. Madison Local Sch. Dist. Bd. of Educ., 153 N.E.3d 471 (Ohio App. 2020). The policy was ultimately struck down by the Ohio Supreme Court. See Louise Hall, Teachers Must Have Police Training to Carry Guns at School, Ohio’s Top Court Rules, The Independent, June 24, 2021. Bloomekatz has also filed suit against Ohio’s “Stand Your Ground” law for violating the state’s single-subject rule and three-day consideration provisions. See Anna Staver, Group Challenges Ohio’s Stand Your Ground Law, Columbus Dispatch, Sept. 10, 2021.

Statements and Writings

Like a number of other judicial nominees, Bloomekatz authored a law review note as a student. Her paper discusses the protections that immigrants have from employment discrimination and exploitation. See Rachel Bloomekatz, Rethinking Immigration Status Discrimination and Exploitation in the Low-Wage Workplace, 54 UCLA L. Rev. 1963 (August 2007). The comment discusses various applications of particular federal statutes on discrimination based on immigration status, including discrimination against U.S.-born workers. In the paper, Bloomekatz suggests that an expansion of Section 1981, which bars racial discrimination in contracting, to cover alienage discrimination, is the best legal tool to address such issues. Id. at 1989-90.

Political Activity

Bloomekatz has been a frequent political contributor throughout her career. Among the recipients of her donations are President Biden, Senator Sherrod Brown, and Hillary Clinton.

Additionally, Bloomekatz has worked as counsel for the campaigns of several Ohio Democrats, including Brown. Bloomekatz also served for the campaign of Danny O’Connor, who narrowly lost a house seat to Rep. Troy Balderson in 2018.

Overall Assessment

For her part, Bloomekatz, at 39, is the youngest Biden appointee to the federal appellate bench so far. However, her youth belies extensive experience with both trial and appellate litigation. Furthermore, given that a number of members of her clerk class at the Supreme Court were appointed to the federal bench under Trump, senators are unlikely to gain much traction by arguing that Bloomekatz is under-qualified for the federal bench.

This is not to say that Bloomekatz will not face strong opposition. Her role in election litigation, as well as her work on firearms regulations, are likely to draw particular fire, and Bloomekatz will likely face a hotly contested confirmation. Nonetheless, with the support of Sen. Sherrod Brown, Bloomekatz is nonetheless favored to join the bench before the end of the session.

Judge Florence Pan – Nominee to the U.S. Court of Appeals for the D.C. Circuit

In 2021, D.C. Superior Court Judge Florence Pan joined the U.S. District Court for the District of Columbia, replacing Judge Ketanji Brown Jackson, who was elevated to the U.S. Court of Appeals for the D.C. Circuit. With Jackson now joining the Supreme Court, Pan has been tapped to replace her on the appellate bench.

Background

Born in 1966, Florence Yu Pan graduated summa cum laude from the University of Pennsylvania in 1988 and then received her J.D. cum laude from Stanford Law School in 1993.

After graduating, Pan clerked for Judge Michael Mukasey on the U.S. District Court for the Southern District of New York and for Judge Ralph Winter on the U.S. Court of Appeals for the D.C. Circuit before joining the Department of Justice as a Bristow Fellow in the Office of the Solicitor General. Pan then worked in the Department of Treasury between 1998 and 1999.

In 1999, Pan became a federal prosecutor with the U.S. Attorney’s Office for the District of Columbia. She stayed with the office until her appointment by President Obama to the D.C. Superior Court in 2009.

On April 28, 2016, Pan was nominated by President Barack Obama to become a U.S. District Judge on the U.S. District Court for the District of Columbia, replacing Judge Reggie Walton. However, her nomination was not processed by the U.S. Senate, which was then under Republican control, and after President Donald Trump was elected, he nominated Dabney Freidrich to fill the vacancy.

On March 24, 2021, President Biden renominated Pan to the U.S. District Court for the District of Columbia, replacing Judge Ketanji Brown Jackson, who was being elevated to the D.C. Circuit. Pan was confirmed 68-30 on September 22, 2021 and has served on the court since.

History of the Seat

The seat Pan has been nominated for will open upon the end of the current Supreme Court term, when Judge Ketanji Jackson will leave her seat on the U.S. Court of Appeals for the D.C. Circuit to replace Justice Stephen Breyer.

Legal Experience

Pan started her legal career as a clerk to Judge Michael Mukasey on the U.S. District Court for the Southern District of New York and then for Judge Ralph Winter on the U.S. Court of Appeals for the Second Circuit. Since then, Pan worked for the federal government until her appointment to the D.C. Superior Court, going from the Department of Justice to the Department of the Treasury to the U.S. Attorney’s Office. During her tenure, Pan tried around forty cases, half of which were jury trials.

Among the significant matters that she worked on, Pan argued before the en banc D.C. Circuit in support of the police partially unzipping the jacket of a suspect during a Terry stop. See U.S. v. Askew, 529 F.3d 1119 (D.C. Cir. 2008) (en banc). The D.C. Circuit ruled against her on the issue, finding that the facts surrounding the stop did not create reasonable suspicion for unzipping the jacket. See id.

Pan also argued in front of the D.C. Court of Appeals in defending a conviction against a defendant alleging an insanity defense to killing her child. See McNeil v. United States, 933 A.2d 354 (D.C. 2007). The D.C. Court of Appeals overturned the conviction, finding that the prosecutor below improperly used the defendant’s invocation of her Miranda rights to argue that she was sane. See id. at 369.

Judicial Experience

From 2009 to 2021, Pan has served as a Judge on the D.C. Superior Court. She started her time in the court on a Felony docket, but has since served on the Family, Misdemeanor, and Civil dockets as well.

While serving on the Felony docket, Pan presided over a number of prosecutions of violent offenders, frequently handing out significant sentences, including a 15-year-sentence for a man who assaulted a victim in LeDroit Park, a 12-year-sentence for a man who stabbed the victim in Southeast D.C., and a 60-year-sentence to Antwon Pitt, who sexually assaulted a woman in Southeast D.C. as part of two home invasions. On the civil side, Pan dismissed a lawsuit filed by the Center for Inquiry against Walmart for selling homeopathic medicines.

In her twelve years on the bench, a handful of Pan’s rulings have been reversed by the D.C. Court of Appeals. In two cases, Pan presided over convictions for assault with significant bodily injury that were reversed because the Court of Appeals found insufficient evidence of significant injury. Compare In re D.P., 122 A.3d 903 (D.C. 2015) with Quintanilla v. United States, 62 A.3d 1261 (D.C. 2013). On the civil side, in 2020, the D.C. Court of Appeals reversed Pan’s decision not to award treble damages in a wage-and-hour suit, finding that she had no discretion not to award the damages. Sivaraman v. Guizzetti & Associates., 228 A.3d 1066 (D.C. 2020).

Since September 23, 2021, Pan has been a judge on the U.S. District Court for the District of Columbia. Despite her relatively brief tenure on the court, Pan has nonetheless handled a number of prominent cases.

Most notably, Pan has sentenced a number of defendants as part of the January 6 prosecutions. For example, she sentenced James Wayne Entrekin, who plead guilty of entering the Capitol without permission, to 45 days in jail, rejecting a prosecutorial request for 105 days in jail and a defense request for probation. See Marisa Sarnoff, Man Who Dressed as ‘Captain Moroni’ from Mormon Sacred Text on Jan. 6 Tells Judge He Still Believes Election Results Were ‘Tampered’ With, Gets Jail Time, Newstex Blogs, May 6, 2022.

Among other matters, Pan denied an emergency injunction to Philip Morris, who was seeking to challenge an FDA regulation on cigarette warning labels, ruling that there was no imminent harm as the regulation would not kick in for another year. See Lauren Berg, Philip Morris Can’t Block Cig Warning Rule Set For Late 2022, Law360, Oct. 27, 2021. Pan also granted a request by the State of Washington to pause a lawsuit alleging that the state permitted a monopoly on gambling activity in the state. See Humberto J. Rocha, DC Judge Pauses Tribal ‘Monopoly’ Suit for Washington State, Law360, Mar. 17, 2022. She subsequently transferred the lawsuit to the Western District of Washington, ruling that she lacked personal jurisdiction over the state defendants. See Khorri Atkinson, DC Judge Lacks Jurisdiction in Tribal Gambling Monopoly Suit, Law360, Apr. 28, 2022.

Political Activity

Pan made a $500 contribution to the Presidential Campaign of John Kerry in 2004, her only contribution of record. Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=florence+pan&cycle=&state=&zip=&employ=&cand= (last visited Apr. 1, 2021).

Overall Assessment

Pan’s 68-30 confirmation in 2021 was a landslide by the standards that most Biden Administration nominees have seen. Her nomination to the D.C. Circuit is likely intended to produce a similar comfortable confirmation for a seat that Administration must fill. While Pan is likely to face significantly more opposition for this seat, she will nonetheless likely be confirmed without too much controversy.

Lara Montecalvo – Nominee to the U.S. Court of Appeals for the First Circuit

Lara Montecalvo, appointed to be public defender in Rhode Island, after her predecessor was appointed to the bench, looks likely to follow suit.

Background

The 48-year-old Montecalvo received a B.A. from Swarthmore College in 1996 and her J.D. from Boston College Law School in 2000. After graduating, Montecalvo spent four years in the Tax Division of the United States Department of Justice before joining the Rhode Island Public Defender’s Office. Montecalvo joined the Office’s Appellate Division, and was appointed its head in 2014, and the official Public Defender in 2020.

History of the Seat

Montecalvo has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit. This seat opened when Judge Ojetta Rogeriee Thompson announced her desire to take senior status upon the confirmation of a successor.

Legal Experience

While Montecalvo started her legal career at the Department of Justice where she worked primarily in bankrupctcy, see, e.g., In re. Claxton, 335 B.R. 680 (Bankr. N.D. Ill. 2002), she has spent the past 18 years at the Rhode Island Public Defender’s Office, where she has represented indigent defendants. Montecalvo started her time at the office as a trial attorney, representing Rachin McCoy, who was sentenced to life in prison for the death of his baby daughter, after he beat her under the influence of marijuana. See Mark Reynolds, Man Gets Life in Daughter’s Death, Providence Journal, Oct. 20, 2011.

Since 2010, Montecalvo has primarily handled appeals, including serving as Chief of the Appellate Division from 2014 to 2020, when Governor Gina Raimondo appointed Montecalvo to be Rhode Island’s Public Defender, replacing Mary McElroy, who was appointed to the federal bench. Donita Taylor, Masked R.I. Senate Panel Confirms Nominee for Public Defender, Providence Journal, May 28, 2020. Among the appeals, she has handled:

  • The Supreme Court overturned a conviction for Possession with Intent to Distribute based on a prosecutor cross-examining the Defendant based on false information about his criminal history. See State v. Price, 68 A.3d 440 (R.I. 2013). See also Tracy Breton, Drug Conviction Flawed, State’s High Court Rules, Providence Journal, June 24, 2013.
  • The Supreme Court overturned a murder conviction where the defendant had been improperly barred from cross-examining a detective who had interviewed him. State v. Arciliares, 108 A.3d 1040 (R.I. 2015).
  • The Supreme Court overturned a murder conviction, finding that evidence obtained through a warrantless search of the man’s home should have been suppressed. See State v. Gonzalez, 136 A.3d 1131 (R.I. 2016). See also Katie Mulvaney, Man’s Conviction in 2012 Warwick Murder Overturned in Court Ruling; State Supreme Court Says Search of Home, Arrest Were Both Faulty, Providence Journal, Mar. 30, 2016.
  • The Supreme Court upheld a conviction for sexual assault, finding that the defendant had validly waived his Miranda rights. State v. Sabourin, 161 A.3d 1132 (R.I. 2017).
  • The Supreme Court upheld a conviction for second degree murder, finding that the prosecutor’s reference to the defendant as a “scam artist” and a “career thief” were not improper given the defendant’s criminal history. State v. Lastarza, 203 A.3d 1159 (R.I. 2019).
  • The Supreme Court overturned a conviction after a prosecutor improperly claimed in closing arguments that the defendant “stared down” the victim in court. State v. Bozzo, 223 A.3d 755 (R.I. 2020). Barry Bridges, New Trial Required Due to Extraneous Closing Comments, Opinion Digest, Jan. 23, 2020.

Additionally, as Public Defender, Montecalvo has continued a partnership between her office and the Lifespan Transitions Clinic, which has worked since 2018 to help provide healthcare for individuals transitioning from prison into the community. Katie Mulvaney, Breaking the Cycle: First-of-its-Kind Partnership Aims to Help Repeat Offenders By Bringing Medical Perspective to Criminal Trials, Providence Journal, May 30, 2021.

Writings

In 2016, Montecalvo coauthored a paper with two other appellate attorneys in Rhode Island discussing the Rhode Island probation system. See Lara Montecalvo, Kara Maguire, and Angela Yingling, No Exit, No End: Probation in Rhode Island, 21 Roger Williams U. L. Rev. 316 (Spring 2016). The article discusses the challenges in the probation system in Rhode Island and recommends a number of legal and policy changes. Id. at 318. Among the changes it recommends, the article suggests that the burden of proof in probation hearings be raised from the “reasonable satisfaction” standard to “beyond a reasonable doubt” or “preponderance of the evidence.” Id. at 340-41. The article also recommends capping terms of probation. Id. at 351.

Overall Assessment

Biden’s judicial nominees have been particularly notable for their large proportion of public defenders, and Montecalvo joins that trend. Montecalvo’s record shows a strong understanding of Rhode Island criminal law, and, suggests little that would threaten a smooth Senate confirmation.

Judge Sarah Merriam – Nominee to the U.S. Court of Appeals for the Second Circuit

After only about six months on the federal district court bench, Judge Sarah Merriam is now poised for elevation to the U.S. Court of Appeals for the Second Circuit.

Background

Sarah A.L. Merriam earned her B.A. from Georgetown University in 1993 and her J.D. from Yale Law School in 2000. After graduating law school, Merriam joined the Hartford office of Cowdery, Ecker, & Murphy as an Associate. In 2007, Merriam moved to the public sector as an Assistant Federal Defender, staying in the office for eight years. In 2015, Merriam was chosen to be a federal magistrate judge, replacing Judge Holly Fitzsimmons.

On June 15, 2021, President Joseph Biden nominated Merriam to the U.S. District Court for the District of Connecticut. Merriam was confirmed by the Senate on October 6, 2021 and has served as a U.S. District Court judge since.

History of the Seat

Merriam has been nominated to a vacancy on the U.S. Court of Appeals for the Second Circuit for a seat to be vacated upon confirmation (likely by Judge Susan Carney).

Legal Career

Merriam started her legal career as an associate at Cowdery, Ecker, & Murphy, where she worked alongside partner Steven Ecker, who now serves on the Connecticut Supreme Court. Among the cases that Merriam and Ecker worked on together, they represented Directors of Reflexite Corp. in defending against a suit alleging that they violated their fiduciary duties to the corporation. See Frank v. LoVetere, 363 F. Supp. 2d 327 (D. Conn. 2005).

From 2007 to 2014, Merriam worked in the Office of the Federal Defender, representing indigent defendants in Connecticut federal court. Among the cases she handled with the office, Merriam represented Michael Danzi, one of two brothers charged with participating in a drug distribution ring importing marijuana from Canada. United States v. Danzi, 726 F. Supp. 2d 109 (D. Conn. 2009).

Jurisprudence

Merriam served as a U.S. Magistrate Judge since her appointment in 2015, where she handles detention, discovery disputes, misdemeanors, and social security/benefits cases. As an example of a matter she handled, Merriam affirmed an administrative decision denying disability benefits for Dana Poole, finding that substantial evidence supported the determination that Poole’s disabilities were not sufficiently severe to qualify her for the benefits. Poole v. Saul, 462 F. Supp.3d 137 (D. Conn. 2020).

In another notable decision, Merriam ruled against the Libertarian Party of Connecticut, finding that the plaintiffs had not shown that Connecticut’s petitioning requirements were overly burdensome on the party. Libertarian Party of Conn. v. Merrill, 470 F. Supp. 3d (D. Conn. 2020).

Since October 2021, Merriam has served as a U.S. District Judge. In her limited tenure as a District Judge, Merriam presided over the corruption trial of State Rep. Michael DiMassa, accused of embezzling hundreds of thousands of dollars of epidemic relief money. See Chris Powell, Corruption in Connecticut Switches Political Parties, Manchester Journal Enquirer, Oct. 27, 2021. Merriam also presided over a suit by Yale Law students alleging retaliation for their refusal to lie in a faculty investigation, in which she declined to allow the plaintiffs to proceed pseudonymously.. See Eugene Volokh, No Pseudonymity in Yale Law School DinnerPartyGate Lawsuit, Volokh Conspiracy, Jan. 19, 2022.

In other rulings, Merriam found that a Federal Tort Claims Act suit brought by a Honduran immigrant was outside the statute of limitations. See Grace Dixon, Honduran Migrant’s Rape Case Against ICE Agent Too Late, Law360, Mar. 29, 2022.

Overall Assessment

Merriam’s initial confirmation to the bench was relatively uncontentious, even though she still drew opposition from the vast majority of Senate Republicans. While Merriam may draw 2-3 Republican votes for elevation at most, she is still favored for confirmation.