Anthony Johnstone – Nominee to the U.S. Court of Appeals for the Ninth Circuit

University of Montana Law Professor Anthony Johnstone has spent his career engaging with the law, including serving as Montana Solicitor General under then Attorney General Steve Bullock.

Background

Anthony Devos Johnstone was born in 1973 in Minneapolis, Minnesota. Johnstone graduated from Yale University in 1995 and from the University of Chicago Law School in 1999 before joining the New York office of Cravath Swaine & Moore.

In 2004, Johnstone moved to Montana to join the Attorney General’s Office. In 2008, Johnstone was selected to be Montana’s State Solicitor, where he served until 2011.

Since 2011, Johnstone has served as a professor at the University of Montana Blewitt School of Law.

History of the Seat

Johnstone has been nominated for a future vacancy that will open upon his former boss Thomas’ move to senior status upon confirmation of a successor. Originally recommended for the vacancy by Sen. Jon Tester, Johnstone was nominated after interviews with Tester and Sen. Steve Daines and with the White House.

Legal Career

After clerking for Judge Sidney Runyan Thomas, Johnstone started his career at the New York office of Cravath Swaine & Moore.

From 2004 to 2008, Johnstone worked for the Montana Attorney General’s Office. In this role, he advised on the language of ballot initiatives, including a proposed initiative to ban same sex marriage. See Bob Anez, Gay Advocacy Group Attacks Same-sex Marriage Ban, A.P. State & Local Wire, Apr. 26, 2004. He also worked on advisory opinions, including one stating that county voters had the right to vote on closing a garbage incinerator. See Draft Opinion: Voters Have Right to Decide Fate of Incinerator, A.P. State & Local Wire, June 22, 2004. In this role, Johnstone also defended the constitutionality of prospective ballot measures in court. See, e.g., Matt Gouras, Another Legal Challenge to Spending Cap Heard Thursday, A.P. State & Local Wire, Sept. 14, 2006. Johnstone also argued before the Montana Supreme Court regarding misconduct by trustees for the art collection of Alberta Bair. See Susan Gallagher, State Supreme Court Weighs Fate of Museum on Montana Ranch, A.P. State & Local Wire, Nov. 1, 2007.

From 2008 to 2011, Johnstone worked as Montana’s State Solicitor, serving as Montana’s primary lawyer in court. In this role, Johnstone argued a number of cases before the Montana Supreme Court, including a ruling in which the Montana Supreme Court ruled that Montanans had the right to assisted suicide. See Baxter v. Montana, 2009 MT 449 (2009). Johnstone also argued that gay couples were not entitled to spousal benefits under state law because the statute limited them to married couples (gay marriage being banned in Montana at the time). See Matt Volz, Gay Couples Argue for Same Rights as Wedded People, A.P. State & Local Wire, Jan. 26, 2011.

Since 2011, Johnstone has served as a law professor, focusing on issues of constitutional law.

Writings

As a law professor, Johnstone has written and spoken extensively on the law. We cover some of the topics he has covered below.

Election Law and Campaign Finance

Election law is one of Johnstone’s expertises. He has testified before the Senate in support of campaign finance restrictions invalidated by the Supreme Court in its Citizens United decision. See Richard Hanners, Federal Judge Rules Against State Campaign Finance Limits, Hungry Horse News, Oct. 4, 2012. He also argue in favor of a resolution calling Citizens United wrongly decided at a debate between the American Constitution Society and the Federalist Society. See Resolved: Citizens United Was Wrongly Decided, US Official News, May 4, 2015. He has also written on the negative impact of Citizens United on judicial elections. See Anthony Johnstone, A Past and Future of Judicial Elections: The Case of Montana, 16 J. App. Prac. & Process 47 (Spring 2015).

Criminal Law

On the criminal side, Johnstone commented on whether the Constitution’s Speedy Trial right applies to sentencing as well as trial. See Matt Volz, U.S. Supreme Court Takes Up Speedy Trial Fight in Montana Case, A.P. State & Local, Mar. 24, 2016.

First Amendment

Johnstone has been critical of campus “free speech zones,” arguing that they necessarily imply that there are certain areas on campus where free speech was not protected. See Claire Shinner, Legislation Aims to Bolster Campus First Amendment Rights, Montana Kaimin: University of Montana, Feb. 23, 2021. Johnstone has also criticized legislative proposals that prevent the removal of students from groups for harassment, noting that they may prevent the university from enforcing its policies. See Mariah Thomas, Free-Speech Legislation Raises Discrimination Concerns, Montana Kaimin: University of Montana, Mar. 2, 2021.

Overall Assessment

Given the extensive nature of Johnstone’s writings and media comments, there is plenty for opponents to mine. Nonetheless, the bulk of his writings and legal experience makes Johnstone hard to pigeonhole as an ideologue. If Democrats hold the Senate, he will likely be confirmed comfortably.

Jabari Wamble – Nominee to the U.S. Court of Appeals for the Tenth Circuit

The Kansas-based vacancy on the Tenth Circuit vacated by Judge Mary Briscoe in March 2021 is the oldest pending appellate vacancy on the federal judiciary. After eighteen months without a nominee, the White House has put forward the name of federal prosecutor Jabari Wamble.

Background

Jabari Brooks Wamble got a B.A. from the University of Kansas in 2002 and a J.D. from the University of Kansas School of Law in 2006. After graduating, Wamble spent two years in the Johnson County District Attorney’s Office before becoming an assistant attorney general in Kansas.

In 2011, Wamble joined the U.S. Attorney’s Office for the District of Kansas and has served there since.

Wamble is married to Marissa Cleaver, the daughter of U.S. Representative Emanuel Cleaver from Kansas City, Missouri.

History of the Seat

Wamble was tapped for a Kansas seat on the U.S. Court of Appeals for the Tenth Circuit. The seat was vacated by Judge Mary Briscoe’s move to senior status on March 15, 2021.

Legal Career

Wamble has spent his entire career in criminal prosecution, albeit at three different levels. He started his career at the Johnson County District Attorney’s Office. From 2007 to 2011, Wamble served in the Kansas Attorney General’s office. While at the Attorney General’s office, Wamble defended the conviction of Oliver McWilliams for Medicaid fraud. See State v. McWilliams, 283 P.3d 187 (Kan. 2012). While the Court of Appeals reversed McWilliams’ conviction, the Kansas Supreme Court reinstated it over the dissent of Justice Johnson.

Since 2011, Wamble has served as a federal prosecutor for the U.S. Attorney’s Office for the District of Kansas. Among his notable prosecutions with the office, Wamble prosecuted Richard Ballard, who pleaded guilty to wire fraud for collecting investment for environmentally friendly bottled water and pet chews, and then using the funds for personal use.

Wamble has also briefed and argued a number of appeals before the Tenth Circuit. For example, he was counsel of record in a suit that affirmed the defendant’s conviction for failing to pay child support. See United States v. Fuller, 751 F.3d 1150 (10th Cir. 2014).

Overall Assessment

Despite his youth, Wamble has built a solid reputation during his legal career, which likely speaks to Kansas Senator Jerry Moran’s relatively positive reaction to the nomination of a young Democrat for the Kansas seat. See Hannah Albarazi, Biden’s 10th Cir. Pick Seen as Humble Yet Savvy Prosecutor, Law360, Aug. 11, 2002. While some may criticize Wamble for having leapfrogged more experienced candidates due to his connection to Cleaver, there is little to criticize in Wamble’s record itself. If Democrats make his nomination a priority, Wamble will likely be confirmed before the end of the Congress.

Judge DeAndrea Benjamin – Nominee to the U.S. Court of Appeals for the Fourth Circuit

Having lost a bitter battle to join the South Carolina Court of Appeals last year, Judge DeAndrea Benjamin has now been nominated for a seat on the U.S. Court of Appeals for the Fourth Circuit.

Background

Born DeAndrea Gist in Columbia, South Carolina, in 1972, Benjamin received a B.A. from Winthrop University in 1994 and a J.D. from the University of South Carolina Law School in 1997. After graduating, Benjamin clerked for Judge L. Casey Manning on the Fifth Judicial Circuit of South Carolina. She then spent two years at the Fifth Judicial Circuit Solicitor’s Office and another two years at the South Carolina Attorney General’s Office before opening her own practice in 2001.

While practicing, Benjamin also worked part-time as a Columbia city judge and on the Juvenile Parole Board. In 2010, Benjamin narrowly lost an election in the South Carolina legislature to become a family court judge to Gwendolyn Young Smalls. See Small Bests Benjamin for Family Court Judge, S.C. Politics Today, Feb. 3, 2010. In 2011, Benjamin was appointed to be a Circuit Judge on the Fifth Judicial Circuit in a unanimous vote. See Wife of Columbia Mayor Elected Judge, A.P. State & Local Wire, Feb. 3, 2011.

Benjamin’s husband, Steve Benjamin is a prominent South Carolina Democrat who lost a race for Attorney General to (now Governor) Henry McMaster in 2002 and served as Mayor of Columbia from 2010 to 2022. In 2010, during the mayoral election, the Benjamins were criticized for listing two primary residences of their tax forms, which they explained was because they moved. See Tax Wars Dominate Capital City Mayoral Race, FITSNews For You, Apr. 17, 2010.

In 2013, Benjamin’s brother Donald Gist Jr. was tragically shot and killed in Charlotte, N.C. See SC Mayor’s Brother-in-Law Killed in Charlotte, A.P. Online, Dec. 7, 2013.

In 2021, Benjamin was up for a seat on the South Carolina Court of Appeals but lost after opposition from conservatives critical of her husband. See Judge and Columbia Mayor’s Wife Loses Partisan Judicial Race, A.P. State & Local, Feb. 3, 2021. The legislature selected Judge Jay Vinson instead.

History of the Seat

Benjamin has been nominated to replace U.S. Circuit Henry Floyd, who moved to senior status on December 31, 2021. Benjamin was recommended for the vacancy by U.S. Rep. Jim Clyburn, who is close to the Biden Administration.

Legal Experience

Benjamin has held a variety of positions throughout her legal career. She started her career at the Fifth Judicial Circuit Solicitor’s Office, where she handled criminal prosecutions in Richland and Kershaw counties. Subsequently, at the South Carolina Attorney General’s Office, she continued criminal prosecutions, including the sexual assault prosecution of York County Sheriff’s Deputy Tommy Benfield Sr. See Former Sheriff’s Deputy Indicted on Sex Charges, A.P. State & Local Wire, Sept. 23, 2000.

From 2001 to 2011, Benjamin worked as a solo practitioner in Columbia. Among the cases she handled during this time, Benjamin represented James McKinney, a teacher who sued an investigator with Richland County for arresting him on warrants not supported by probable cause. See McKinney v. Richland Cnty. Sheriff’s Dep’t, 431 F.3d 415 (4th Cir. 2005). After Judge Margaret Seymour denied summary judgment for the defendants, the Fourth Circuit reversed, finding that the defendants were entitled to qualified immunity. See id. at 419.

Benjamin also handled a number of employment discrimination suits, including that of Ada Irene Dawson, an African-American FBI agent who sued for racial discrimination, a hostile work environment, and retaliation. See Dawson v. United States, 549 F. Supp. 2d 736 (D.S.C. 2008). Benjamin also represented Beverly Mahomes who sued the U.S. Postal Service for racial discrimination after her termination. See Mahomes v. Potter, 590 F. Supp. 2d 775 (D.S.C. 2008).

Jurisprudence

Benjamin has served as a South Carolina Circuit Court judge since her election in 2011. In this role, she serves as a trial judge handling both civil and criminal matters for the counties of Richland and Kershaw.

Among her criminal cases, Benjamin has shown a willingness to hand out harsh sentences. For example, she sentenced Brett Parker to two terms of life in prison after he was convicted of killing his wife and his business partner. See Judge Sentences Columbia Man to 2 Life Terms, A.P. State & Local Wire, May 29, 2013. She also sentenced Christopher Harmon to 20 years in prison for kidnapping and sexual assault. See North August Man Sentenced to 20 Years for 2017 Kidnapping, Sexual Assault Case, Aiken Standard, Dec. 19, 2019.

On the civil side, Benjamin dismissed a suit challenging South Carolina’s ban on online eye exams, finding the company had failed to plead an injury sufficient to give them standing to challenge the law. See Judge Dismisses Case Challenging Online Eye Exam Ban, Columbia Regional Business Report, Jan. 30, 2018. The South Carolina Court of Appeals reversed, finding that the requirements for standing had been met. See Opternative, Inc. v. S.C. Bd. of Med. Examiners, 859 S.E.2d 263 (S.C. App. 2021).

Benjamin also sat by designation on the South Carolina Supreme Court. See, e.g., Burch v. Burch, 717 S.E.2d 757 (S.C. 2011).

During her time on the circuit court bench, some of Benjamin’s decisions were appealed to the South Carolina Court of Appeals and the South Carolina Supreme Court. The majority of these decisions were affirmed. See, e.g., State v. Brown, 740 S.E.2d 493 (S.C. 2013) (affirming jury instructions given in larceny conviction). Some of the decisions that were reversed are highlighted below:

Lee v. Univ. of S.C. (757 S.E.2d 394 (S.C. 2014)) – The plaintiff contracted with the University to give him an opportunity to purchase football and basketball tickets throughout his lifetime in consideration for taking out a life insurance policy with the University as a beneficiary. The University subsequently began imposing seat license fees on all purchases, which the plaintiff challenged as a breach of contract. Benjamin ruled that the plaintiff was not being denied his contractual right of purchase by imposing the licensing fees. The South Carolina Supreme Court reversed 4-1, finding that the payment of the licensing fee constituted an additional condition the University attempted to impose on a contract that did not require it. Justice Costa Pleicones would have affirmed.

Sanders v. State (773 S.E.2d 580 (S.C. 2015)) – The Defendant in the case agreed to waive all collateral review of any conviction in exchange for the state agreeing not to seek the death penalty. When the Defendant subsequently attempted to collaterally challenge his conviction, Benjamin dismissed the challenge under the agreement. The South Carolina Supreme Court reversed, finding that Benjamin should have convened an evidentiary hearing to confirm if the Defendant’s attorney was constitutionally defective in advising him to consent to the agreement.

Lucero v. State (777 S.E.2d 409 (S.C. App. 2015)) – The Defendant challenged her conviction for drug trafficking collaterally after an immigration judge ordered her removed based on the conviction. Benjamin granted post-conviction relief based on the Supreme Court’s decision in Padilla v. Kentucky, which found that defense counsel needed to advise non-citizens of immigration consequences from their pleas. The Court of Appeals reversed, finding that the Padilla decision could not be applied retroactively to the Defendant’s case.

State v. Stukes (787 S.E.2d 480 (S.C. 2016)) – The Defendant was convicted of rape after a trial in which the complainant claimed that she was assaulted while the Defendant argued that the intercourse was consensual. Benjamin advised the jury, consistent with the statute, that the complainant’s statement need not be corroborated to be believed. The South Carolina Supreme Court reversed 3-2, finding that, while the instruction was an accurate statement of the law, it confused the jury in this instance and was impermissible. Justice Kittredge dissented, finding any error to be harmless.

State v. Herndon (845 S.E.2d 499 (S.C. 2020)) – The Defendant, after a conviction for voluntary manslaughter, challenged Benjamin’s refusal to give the jury a Logan charge, or an instruction advising them as to how they should consider circumstantial evidence, as opposed to direct evidence. The South Carolina Supreme Court reversed, finding that, as the state’s evidence was almost entirely circumstantial, the charge was required to be given.

Overall Assessment

Benjamin has had her share of judicial disappointment, including losing bids for the Family Court and the South Carolina Court of Appeals. While Benjamin may well draw opposition in her bid for the Fourth Circuit, her confirmation will largely be tied to what Sen. Lindsay Graham chooses to do. Graham, who has generally been one of the most friendly Republican senators to Biden nominees, could grease the path for his home-state nominee if he supports her. If Graham chooses to oppose Benjamin, however, it is unlikely that she would be confirmed.

Julie Rikelman – Nominee to the U.S. Court of Appeals for the First Circuit

One of the foremost advocates for legal protections for a woman’s right to choose, Julie Rikelman, has been tapped for an appellate seat on the First Circuit.

Background

A native of the Ukraine, Rikelman was born in Kyiv in 1972 and immigrated to the United States in 1979. Rikelman attended Harvard College, getting her B.A. in 1993 and then her J.D. from Harvard Law School in 1997. Rikelman then clerked for Justice Dana Fabe on the Alaska Supreme Court and then for Judge Morton Ira Greenberg on the U.S. Court of Appeals for the Third Circuit.

After her clerkships, Rikelman joined the Center for Reproductive Rights as a Blackmun Fellow. After her fellowship, she joined Feldman & Orlansky in Anchorage. In 2006, Rikelman returned to New York to join Simpson Thatcher & Bartlett and after two years there, she joined the litigation team at NBC Universal.

In 2011, Rikelman became senior litigation director for the Center for Reproductive Rights, where she currently serves.

History of the Seat

Rikelman has been nominated for a vacancy on the U.S. Court of Appeals for the First Circuit. This seat opened when Judge Sandra Lea Lynch announced her desire to take senior status upon the confirmation of a successor.

Legal Experience

Outside her clerkships, Rikelman started her legal career as a fellow at the Center for Reproductive Rights. During her fellowship, Rikelman represented Victoria, who sued Terrebonne Parish for failure to obtain a timely abortion while she was incarcerated. See Victoria W. v. Larpenter, 205 F. Supp. 2d 580 (E.D. La. 2002). Rikelman also notably assisted Priscilla J. Smith in successfully overturning a state hospital’s taking of mandatory drug tests from pregnant women as a violation of the Fourth Amendment. See Ferguson v. City of Charleston, 532 U.S. 67 (2001).

After her fellowship, Rikelman shifted to Anchorage where she represented Friends of Mark Begich, who was running for Mayor of Anchorage, in a suit challenging ballot placement in the election. See DeNardo v. Municipality of Anchorage, 105 P.3d 136 (Alas. 2005). Rikelman then shifted to New York where she represented NBC employees sued by Doug Copp for allegedly defamatory statements they made about him. See Copp v. Ramirez, 62 A.D.3d 23 (N.Y. App. Div. 2009).

Since 2011, Rikelman has worked on abortion rights litigation at the Center for Reproductive Rights. Among her notable cases, she has handled the following:

  • A First Amendment challenge to informed consent provisions for abortion in Texas. See Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012).
  • A First Amendment challenge to North Carolina laws requiring pregnant women to be informed about the state’s preference for childbirth over abortion. Stuart v. Loomis, 992 F. Supp. 2d 585 (M.D.N.C. 2014).
  • A Fourteenth Amendment challenge to restrictions on reproductive medications in Arizona. See Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905 (9th Cir. 2014).
  • A challenge to a Mississippi requirement that abortion clinics have “admitting privileges” with local hospitals as an “undue burden” to the right to choose. Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014).
  • A First Amendment challenge to a North Carolina law requiring that physicians perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions. Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014).
  • A challenge to North Carolina’s 20-week abortion ban. Bryant v. Woodall, 306 F. Supp. 3d 611 (M.D.N.C. 2019).
  • A challenge to South Carolina’s exclusion of Planned Parenthood from Medicaid providers. Planned Parenthood S. Atl. v. Baker, 941 F.3d 687 (4th Cir. 2019).

Most notably, Rikelman argued two notable abortion cases before the U.S. Supreme Court. In 2019, Rikelman argued that the Constitution prohibited a Louisiana law requiring abortion providers to have admitting privileges in local hospitals. See June Medical Servs. LLC v. Russo, 591 U.S. __ (2020). The Supreme Court, in a 5-4 vote, agreed and reversed a judgment in favor of the state. See id. Two years later, Rikelman argued that the Court should not overturn Roe v. Wade. The Court, however, with Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsburg, overturned Roe v. Wade. See Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022).

Writings

In her role at the Center for Reproductive Rights, Rikelman has frequently spoken out on abortion rights. For example, in 2017, Rikelman was a panelist on a Woman’s Reproductive Rights panel at Rutgers University. See Panel Five: Women’s Reproductive Rights and Health: Beijing+20, 38 Women’s Rights L. Rep. 304 (Spring/Summer 2017). In her remarks, Rikelman criticized abortion restrictions being passed across the country for limiting “access to safe and legal abortion.” See id. at 305.

Rikelman has also frequently commenting in opposition to abortion restrictions in the media and in favor of decisions protecting abortion rights. For example, she praised a decision by Judge B. Lynn Winmill to strike down Idaho’s “fetal pain” bill, noting: “Today’s ruling has overturned a legislative assault by politicians who seek to interfere with [a woman’s] decision and deny women this fundamental right.” See Rebecca Boone, Idaho First State to Have Fetal Pain Law Rejected, A.P. Online, Mar. 8, 2013 (quoting Julie Rikelman). Similarly, Rikelman criticized Mississippi restrictions requiring abortion clinics to have “admission privileges,” stating: “There’s no medical justification; states should not be able to restrict a constitutional right based on pretext.” See Sophie Novack, Mississippi’s Only Abortion Clinic Will Remain Open, National Journal, July 29, 2014 (quoting Julie Rikelman).

Outside the abortion context, Rikelman authored a law review article discussing appellate decisions permitting mandatory blood collection for DNA testing under the Fourth Amendment, arguing that such mandatory collection was prohibited by the Constitution. See Julie Rikelman, Justifying Forcible DNA Testing Schemes Under the Special Needs Exception to the Fourth Amendment: A Dangerous Precedent, 59 Baylor L. Rev. 41 (Winter 2007).

Overall Assessment

Out of all of Biden’s appellate nominees, Rikelman is likely one of the most controversial. This is not necessarily based on concerns about her qualifications, intellect, or temperament. However, Rikelman has spent the last decade working in one of the most contentious legal issues in today’s environment: abortion rights. As such, Rikelman’s nomination will likely turn on whether she can retain support from all fifty Senate Democrats. While she is still (slightly) favored to get confirmed, it is possible that the senate calendar may claim Rikelman’s nomination as a casualty.

Justice Maria Araujo Kahn – Nominee to the U.S. Court of Appeals for the Second Circuit

Connecticut Supreme Court Justice Maria Araujo Kahn has served the last sixteen years as a state judge, building a long judicial record that may be parsed for her appellate nomination.

Background

Born to a Portuguese family in Angola in 1964, Maria Araujo Kahn immigrated to the United States at age 10. Kahn graduated from New York University in 1986 and the Fordham University Law School in 1989. After graduating, Kahn clerked for Judge Peter Dorsey on the U.S. District Court for the District of Connecticut.

In 1993, Kahn joined the Connecticut Office of Protection and Advocacy for Individuals with Disabilities. She subsequently became an Assistant U.S. Attorney based in New Haven. In 2006, Republican Governor Jodi Rell appointed Kahn, a Democrat, to the New Haven County Superior Court.

In 2013, Kahn was recommended to President Obama for the federal district court in Connecticut, but another nominee, Jeffrey Mayer, was nominated and confirmed instead.

In 2017, Kahn was elevated to the Connecticut Appellate Court by Governor Dannel Malloy. Malloy subsequently appointed Kahn to the Connecticut Supreme Court, replacing Justice Carmen Espinosa. Kahn has served on the court since.

History of the Seat

Kahn has been nominated to replace Judge Jose Cabranes, who has announced his desire to take senior status upon the confirmation of a successor.

Legal Career

After her clerkship, between 1993 and 1997, Kahn worked for the Connecticut Office of Protection and Advocacy for Individuals with Disabilities, where she litigated in support of plaintiffs seeking medical and legal rights in health care litigation. For example, Kahn filed an amicus brief in support of a plaintiff seeking to stop the forcible administration of medication for his mental illness in non-emergency situations. See Doe v. Hunter, 667 A.2d 90 (Conn. Super. 1995).

Kahn subsequently became a federal prosecutor with the U.S. Attorney’s Office for the District of Connecticut. In this role, Kahn worked alongside future federal judge Stephen Robinson and future federal judicial nominee Barbara Jongbloed to prosecute Dr. Oscar Perez Gomez for Medicare fraud. United States v. Gomez, 2003 U.S. Dist. LEXIS 16068 (D. Conn. Aug. 29, 2003). She also prosecuted cases of mail and wire fraud. See, e.g., United States v. Clarke, 390 F. Supp. 2d 131 (D. Conn. 2005).

Jurisprudence

Kahn has served on all levels of the Connecticut judiciary: trial, appellate, and supreme. She has been appointed to these positions by Governors of both political parties.

Superior Court

Kahn joined the New Haven County Superior Court after her appointment by Rell in 2006. In that role, Kahn served as a trial judge hearing both civil and criminal cases. Early in her time on the bench, Kahn declined to overturn a Council decision to approve a Spring cell tower to be built in Litchfield. See Rosa v. Sitting State Council, 2007 Conn. Super. LEXIS 590 (2007).

On the criminal side, Kahn declined to suppress evidence arising from a traffic stop, finding that the officer had reasonable suspicion for the stop and that he did not unreasonably prolong the traffic stop. State v. Cronin, 2008 Conn. Super. LEXIS 2899 (2008). She also declined to dismiss a DUI charge where the police officer had videotaped the defendant while he was consulting with his attorney on whether to take a breathalyzer. State v. Abbate, 2011 Conn. Super. LEXIS 2494 (2011).

Court of Appeals

In 2017, Gov. Malloy elevated Kahn to the Connecticut Appellate Court. Kahn’s tenure on the Appellate Court was fairly short before her elevation.

Supreme Court

A few months after she was appointed to the Connecticut Appellate Court, Kahn was elevated to the Connecticut Supreme Court by Malloy. Kahn has served on the seven-member court since.

Among her key opinions on the Connecticut Supreme Court, Kahn wrote for the majority declining to fashion a Miranda-like prophylactic rule that would require the police to warn juveniles that their crimes may have adult consequences before questioning them. See Pat Eaton-Robb, Court Won’t Create Special Miranda Warning for Juveniles, A.P. State & Local, June 28, 2018.

In another ruling, Kahn wrote for a unanimous court in overturning Sen. Ernest Newton’s convictions for campaign fraud, ruling that the trial court had improperly instructed the jury on the level of intent needed for conviction. See Court Overturns Former Senator’s Campaign Fraud Convictions, A.P. State & Local, Oct. 12, 2018. In contrast, Kahn upheld a murder conviction resting solely on “cross-racial” eyewitness testimony, finding that defense attorneys had failed to meet their burden to show that no reasonable factfinder would have convicted. See Pat Eaton-Robb, Court Upholds Conviction Based on ID by Single Eyewitness, A.P. State & Local, Oct. 11, 2019.

In one notable case, Kahn concurred in the Connecticut Supreme Court’s ruling upholding a conviction for breach of the peace, finding that using the n-word in referring to an african american public servant constituted “fighting words” which were unprotected by the First Amendment. See State v. Liebenguth, 250 A.3d 1 (Conn. 2020). In her concurring opinion, Kahn described the fighting words doctrine, which allows the state to prohibit words likely to incite violence, as “dubious,” noting that it “leads to consideration of stereotypical propensities for violence when assessing an addressee’s likely response to the speaker’s words.” Id. (Kahn, J., concurring).

Writings and Statements

In 2019, Kahn joined fellow Supreme Court Justice Richard Robinson on a panel at Eastern Connecticut State University discussing implicit biases in the legal system. Connecticut Supreme Court Justices Discuss Implicit Biases, Targeted News Service, Apr. 9, 2019. In her remarks at the event, Kahn discusses “hidden biases” that people often don’t recognize. Kahn states:

“Example: When people see a Black person and say ‘I don’t see color,’ Oh yes you do! You take information about Black people already in your head, which rejects notions of you opening your mind more to being a more transparent human being.” See id. (quoting Hon. Maria Araujo Kahn).

Overall Assessment

Over her sixteen years on the Connecticut state bench, Kahn has built a relatively mainstream record, with few rulings that have drawn criticism or controversy. That, combined with her comparative lack of youth, should make Kahn a less controversial nominee. However, Kahn may, nonetheless, draw opposition based on her remarks on implicit bias. Additionally, Kahn also faces a limited senate calendar, making the prospects of an end-of-year confirmation more difficult than otherwise anticipated.

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.