Court of Appeals

Judge John Lee – Nominee to the U.S. Court of Appeals for the Seventh Circuit

Judge John Lee has been sitting on the U.S. District Court for the Northern District of Illinois for the last decade. He is now poised for elevation to the U.S. Court of Appeals for the Seventh Circuit.

Background

John Zihun Lee was born in Aachen, Germany on March 30, 1968. Lee attended Harvard College, getting an A.B. in 1989. He continued on to Harvard Law School, getting his J.D. in 1992.

After graduating law school, Lee joined the Environment and Natural Resources Division of the U.S. Department of Justice. In 1994, Lee moved to Chicago to become an Associate with Mayer Brown. In 1996, Lee moved to Grippo & Elden LLC. In 1999, Lee became an Associate at Freeborn & Peters LLC, where he became a Partner in 2001.

On November 10, 2011, Lee was nominated by President Barack Obama for a vacancy on the U.S. District Court for the Northern District of Illinois vacated by Judge David Coar. Lee was confirmed unanimously by the Senate on May 7, 2012. He serves as a federal district judge today.

History of the Seat

Lee has been nominated for a Illinois seat on the U.S. Court of Appeals for the Seventh Circuit. This seat opened when Judge Diane Wood indicated her intention to take senior status upon confirmation of a successor.

Legal Career

Lee began his legal career at the Department of Justice, focusing on environmental cases in the Third, Seventh, and Ninth Circuits. In 1994, he moved to Chicago to join Mayer Brown and has been in private practice since, working primarily on antitrust, employment, and tort cases.

Among the most notable cases he has handled, Lee represented McDonald’s in a trademark and copyright dispute involving a license to produce toys along the Bratz toy line. McDonald’s Corp. v. MGA Entertainment, Inc., 03-C-1026 (N.D. Ill.) (Gettleman, J.). Lee also represented defendants in a price fixing lawsuit involving the sulfuric acid industry. In re Sulfuric Acid Antitrust Litig., 03-CV-4576 (N.D. Ill.) (Holderman, J.).

Political Activity

Lee has two political contributions to his name, one to President Obama and one to Durbin, both in the 2008 cycle.

Jurisprudence & Reversals

Lee has served as a judge on the U.S. District Court for the Northern District of Illinois for the last ten years. Among the notable cases that Lee has presided over, Lee declined to issue a preliminary injunction to stop the closure of 49 Chicago elementary schools, ruling that there was no evidence supporting a disproportionate impact on students with disabilities. See Lauren Fitzpatrick, Case Closed: Ruling Means Schools Won’t Reopen, Chicago Sun-Times, Aug. 16, 2013. Other notable decisions are summarized below.

Edmonds Sentencings

In 2016, Lee presided over sentencings for Hasan Edmonds and Jonas Edmonds, cousins charged with plotting to attack a National Guard base. See Jon Seidel, Hasan Edmonds Gets 30 Years For Plot On National Guard Base, Chicago Sun-Times, Sept. 20, 2016. Lee sentenced Hasan to 30 years in prison, and Jonas to 21 years, stating from the bench that their actions reflected “utter hatred and disdain for this country.” See id.

Stay-at-Home COVID Orders

In 2020, Lee ruled against one of the earliest lawsuits challenging Covid-19 stay-at-home orders under the First Amendment, ruling that the rights of the plaintiff church were not violated given Supreme Court precedent in the Jacobsen and Prince cases. See Ben Pope, U.S. District Judge Rules Pritzker’s Stay-At-Home Order Constitutional, Chicago Sun-Times, May 3, 2020.

Opinions by Designation

In addition to his time as a district court judge, Lee has sat by designation on occasion with the Seventh Circuit. While on the court, Lee has authored a number of opinions, generally unanimous ones. See, e.g., Judson Atkinson Candies Inc. v. Kenray Assocs., 719 F.3d 635 (7th Cir. 2013).

One notable exception was in Henry v. Hulett. In that decision, a 2-1 panel of the Seventh Circuit rejected a civil rights suit brought by inmates in an Illinois prison who were subjected to strip and body cavity searches. See 930 F.3d 836 (7th Cir. 2019). However, in dissent, Lee disagreed with the majority that the strip searches were permissible because the prisoners themselves were required to conduct the body cavity searches. See id. at 839 (Lee, J., dissenting). The Seventh Circuit then took the case en banc and overturned the panel decision, largely agreeing with Lee’s reasoning. See Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020) (en banc).

Reversals

In his time on the bench, Lee has generally seen his rulings affirmed by the Seventh Circuit. However, they have reversed Lee in a handful of cases. For example, in Addison Automatics, Inc. v. Hartford Cas. Ins. Co., 731 F.3d 740 (7th Cir. 2013), the Seventh Circuit reversed Lee’s decision to remand a class action suit to state court. Similarly, the Seventh Circuit reversed a grant of summary judgment to a union in a breach of duty of fair representation suit. See Rupcich v. UFCW Int’l Union Local 881, 833 F.3d 847 (7th Cir. 2016).

Overall Assessment

Lee comes to the confirmation process with a long judicial paper trail. With this tenure as a federal judge, Lee’s qualifications for the appellate bench are unquestionable.

However, Lee’s rulings upholding Pritzker’s stay-at-home orders are likely to draw particular scrutiny, especially as COVID-19 restrictions are significantly more controversial today. While Lee is still strongly favored for confirmation, his confirmation is unlikely to mirror his unanimous approval in 2012.

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Judge Stephanie Davis – Nominee to the U.S. Court of Appeals for the Sixth Circuit

A Democrat named to the federal bench by a Republican President, Judge Stephanie Davis is poised for elevation to the U.S. Court of Appeals for the Sixth Circuit.

Background

Davis was born Stephanie Renaye Dawkins in Kansas City Missouri in 1967.  Davis received a B.S. from Wichita State University in 1989 and her J.D. from the Washington University School of Law in 1992.[1]

After graduation, Davis joined the Detroit office of Dickinson Wright PLLC.[2]  In 1997, Davis joined the U.S. Attorney’s Office for the Eastern District of Michigan as a federal prosecutor.[3]  In 2010, newly appointed U.S. Attorney Barbara McQuade chose Davis to be Executive Assistant U.S. Attorney.[4] 

In 2016, Davis was appointed as a U.S. Magistrate Judge in the Eastern District of Michigan.  In 2019, at the recommendation of Michigan’s Democratic Senators, President Trump nominated Davis to the U.S. District Court for the Eastern District of Michigan.  Davis was unanimously confirmed to the position on December 19, 2019.  She currently serves as a U.S. District Judge.

History of the Seat

Davis has been nominated for a seat on the U.S. Court of Appeals for the Sixth Circuit.  The current holder of the seat, Judge Helene White, another Democrat nominated by a Republican President, has announced that she will move to senior status upon the confirmation of a successor.

Legal Career

Davis has held two primary positions in her pre-bench career.  From 1992 to 1997, Davis worked at the Detroit office of Dickinson Wright PLLC, where she focused largely on commercial litigation.  Then, from 1997 to 2016, Davis worked as a federal prosecutor, including as the Executive Assistant U.S. Attorney, the second in command to then-U.S. Attorney Barbara McQuade, from 2010 to 2016.

Notably, as a prosecutor, Davis prosecuted Sohrab Shafinia, a Farmington doctor, for writing prescriptions for controlled substances in exchange for cash payments.[6]  She also helped prosecute Detroit officials for taking bribes and kickbacks and conspiring to defraud retirees.[7]

Political Activity

Davis’ political activity has exclusively been in support of Democrats.  For example, Davis served with the transition team of Detroit mayor Dennis Archer in 1993 and volunteered to conduct election protection for the Obama campaign in 2008.[8]  She also gave $250 apiece to the Obama campaigns in 2008 and 2012.[9]  Furthermore, Davis was a member of the American Constitution Society, an organization of left-leaning lawyers and law students, from 2008 and 2016, and served on the Board of the Detroit Chapter of the group between 2012 and 2015.[10]

Jurisprudence

Davis served as a U.S. Magistrate judge from her appointment in 2016 to 2019.  In this role, she handled settlement, discovery, and made recommendations on dispositive motions.  She also presided over cases where the parties consent.  Between 2016 and 2019, Davis presided over sixteen civil cases that proceeded to judgment.[11]  Davis’s more prominent trials include a Computer Fraud Act case against a former employee who stole information before setting up a competitor,[12] and a bench trial arising from a traffic collision at Fort Meade.[13]  Additionally, in another matter, Davis denied summary judgment against Muslim plaintiffs who argued that they were denied calorically equivalent meals during their fasts for Ramadan.[14]

Since her confirmation in 2019, Davis has served as a U.S. District Judge on the Eastern District of Michigan.  Among the notable matters that Davis handled as a district judge, she was assigned to review a Michigan law that criminalized the practice of hiring drivers to transport voters to the polls.[15]  Davis granted a preliminary injunction against the law, finding that the statute was pre-empted by federal law.[16]  However, Davis’ decision was subsequently overruled by a 2-1 decision of the Sixth Circuit, although Chief Judge R. Guy Cole supported Davis’ decision in dissent.[17]

Overall Assessment

Davis has already been unanimously approved by the Senate less than three years ago.  While she is unlikely to repeat that feat, some of the gloss from her earlier confirmation is likely to carry over to this one.  Davis’ background as a federal prosecutor and magistrate judge makes her a fairly traditional nominee, and is unlikely to draw significant controversy.  For senators who oppose Davis, her reversal by the Sixth Circuit in the voter transportation case is bound to be closely cited.

[1] Sen. Comm. on the Judiciary, 114th Cong., Stephanie Davis: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id. at 58.

[6] Michigan Physician Guilty of Conspiracy to Distribute Controlled Substance, Targeted News Service, Sept. 3, 2009.

[7] Jury Convicts Former Detroit City Treasurer, Pension Officials of Conspiring to Defraud Pensioners Through Bribery, U.S. Fed News, Dec. 8, 2014.

[8] Id. at 40.

[10] See Davis, supra n. 1 at 4.

[11] See id. at 12.

[12] Am. Furukawa, Inc. v. Hossain, 2017 U.S. Dist. LEXIS 161650 (E.D. Mich. Sept. 29, 2017).

[13] United States v. McNeill, Traffic Violation No. 2359730.

[14] Conway v. Purves, 2016 U.S. Dist. LEXIS 128171 (E.D. Mich. Aug. 1, 2016), report and recommendation adopted, 2016 U.S. Dist. LEXIS 127648 (E.D. Mich. Sept. 20, 2016) (Parker, J.).

[15] See Marshall Cohen, Michigan Judge Blocks Law That Banned Paid Transportation to Polls, CNN.com, Sept. 17, 2020.

[16] See id. 

[17] Colin Kalmbacher, Conservative Appeals Court Allows Michigan to Enforce Ban on Paid Transportation to the Polls in Loss for Voting Rights Advocates, Newstex Blogs, July 21, 2021.

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Arianna Freeman – Nominee to the U.S. Court of Appeals for the Third Circuit

After Judiciary Chairman Chuck Grassley’s reversal on blue slips in the Trump Administration, he processed and confirmed three Trump nominees to the Third Circuit over the objections of their home state senators. With the shoe now on the other foot, Arianna Freeman looks strongly favored to join the Third Circuit, even without the support of her home-state senator.

Background

Arianna J. Freeman received her B.A. with Honors from Swarthmore College in 2001 and J.D. from Yale Law School in 2007. Freeman then clerked for Judges C. Darnell Jones and James Giles on the U.S. District Court for the Eastern District of Pennsylvania.

After her clerkships, Freeman joined the Federal Community Defender Office for the Eastern District of Philadelphia. Freeman has stayed with the office since then, currently serving as managing attorney.

History of the Seat

Freeman has been nominated for a Pennsylvania seat on the U.S. Court of Appeals for the Third Circuit, which will be vacated by Judge Theodore McKee upon the confirmation of the successor.

Legal Experience

Freeman has spent her entire legal career as an indigent defender, serving in various capacities with the Federal Community Defender’s Office, including her current role as managing director.

Among the matter she handled with the office, Freeman persuaded a district judge to grant habeas relief to a state prisoner, noting that the prisoner had suffered ineffective assistance of counsel when his counsel failed to raise on appeal a claim that his judge had improperly closed the courtroom for his trial. See Tucker v. Werenowicz, 98 F. Supp. 3d 760 (E.D. Pa. 2015). However, the ruling was subsequently overturned by the Third Circuit Court of Appeals. See Tucker v. Superintendent Graterford SCI, 677 Fed. Appx. 768 (3d Cir. 2017).

Freeman also argued a number of appeals before the Third Circuit in her role. See, e.g., Norris v. Brooks, 794 F.3d 401 (3d Cir. 2015). In one notable case, Freeman persuaded the Third Circuit to grant habeas relief to a defendant whose Confrontation Rights were violated when the trial court admitted a co-defendant’s confession, which the prosecution improperly acknowledged implicated the defendant. See Brown v. Sci, 834 F.3d 506 (3d Cir. 2016).

Outside the habeas context, Freeman unsuccessfully argued before the Third Circuit that the district court acted correctly in finding a defendant to not be a “career offender” under the Armed Career Criminal Act. See United States v. Ramos, 892 F.3d 599 (3d Cir. 2018).

Overall Assessment

Despite her youth, Freeman has established herself as one of the foremost advocates for the indigent in eastern Pennsylvania. Additionally, Freeman does not have a paper trail of controversial stances that might emperil Democratic support for her nomination. As such, Freeman is strongly favored for confirmation to the Third Circuit.

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Judge J. Michelle Childs – Nominee to the U.S. Court of Appeals for the D.C. Circuit

Judge Juliana Michelle Childs has spent approximately fifteen years on the state and federal bench in South Carolina. While she was a frontrunner for a Fourth Circuit vacancy in her home state, Childs is currently nominated to a seat on the powerful D.C. Circuit.

Background

Julianna Michelle Childs was born in Detroit on March 24, 1966. Childs graduated from the University of South Florida in 1988 and from the University of South Carolina Law School in 1991. After graduating, Childs joined the Columbia office of Nexsen Pruet, LLC. where she became the firm’s first African American partner.

In 2000, Childs was named by Gov. Jim Hodges to be deputy director of the labor division of the South Carolina Department of Labor, Licensing, & Regulations. In 2002, Childs was named to the South Carolina Workers’ Compensation Commission.

In 2006, Childs was selected to be a Circuit Court judge on the Richland County bench. In 2010, Childs was nominated by President Obama and confirmed by the U.S. Senate to the U.S. District Court for the District of South Carolina, where she currently serves.

History of the Seat

Childs has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit. The seat will open at the move to senior status of Judge David Tatel.

Political Activity

Childs has a limited political history, largely consisting of a single donation to Al Gore’s presidential campaign in 1999.

Legal Career

Childs started her legal career at the firm of Nexsen Pruet before moving on to the South Carolina Department of Labor and the South Carolina Workers’ Compensation Commission.

Childs worked at Nexsen Pruet between 1992 and 2000, including serving as the firm’s first African American Partner. At the firm, Childs worked on employment, business litigation, and family law. She also tried over twenty cases before a jury. Among these trials, Childs represented Bamberg County in a suit brought by the estate of an inmate at the Bamberg County Detention Center after he committed suicide in his cell. See Stanley v. Bamberg County, 1997-CP-05-19. After a hung jury, the case settled. On the federal side, Childs represented L&L Wings, Inc. in a Title VII discrimination lawsuit, which ended with a jury verdict for the plaintiffs on one claim of retaliation and claims of sexual harassment, with the defendants winning other claims. See Harris and Prasky v. L&L Wings, Inc., 132 F.3d 978 (4th Cir. 1997).

Childs served on the South Carolina Workers’ Compensation Commission after her appointment in 2002 to 2006. In that role, Childs adjudicated issues of compensation, disability, benefits, and workplace injury. During her tenure, the Commission voted to eliminate the positions of Court Reporters to reduce expenditures, and the reporters filed suit. See Morris v. South Carolina Workers’ Compensation Commission et al., No. 26201 (S.C. Aug. 21, 2006). While a trial judge sided with the reporters, the South Carolina Supreme Court unanimously reversed. See id.

Jurisprudence

Since her unanimous confirmation in 2010, Childs has served as a federal district judge on the U.S. District Court for the District of South Carolina. In addition, Childs was a state court judge between 2006 and 2010. Some of the cases she has presided over are summarized below.

State Bench

Childs served on the Richland County Circuit Court between 2006 and 2010, during which time she presided over both criminal and civil matters in a court of general jurisdiction. During her tenure, Childs presided over approximately 42 jury trials and 8 bench trials. For example, Childs presided over a $3.5 million verdict for a plaintiff struck by a motor vehicle operator due to the alleged negligence of the South Carolina Department of Transportation. See Cohen v. S.C. Dep’t of Trans., 2005-CP-27-188. In another notable decisions on the state bench, Childs dismissed a re-indictment based on allegations of molestation by the victim’s stepfather. See State v. Gerald Williamson, 2006-CP-40-2803. Childs found that a ten year delay in the indictment of the case unduly prejudiced the Defendant and justified the dismissal.

Childs also sat as Acting Justice for the South Carolina Supreme Court on occasion, including in one case where she reversed a circuit court’s failure to sustain a Batson challenge after a juror was struck due to objections based on their dreadlocks. See McCrea v. Gheraibeh, 669 S.E.2d 333 (S.C. 2008).

Election Law

Childs has made multiple key rulings on issues of election law. In 2011, Childs rejected a challenge to South Carolina’s open primary law brought by the Greenville County Republican Party, ruling that the open primary did not violate the First or Fourteenth Amendments. See Greenville Cnty. Repub. Party Exec. Comm. v. South Carolina , 824 F. Supp. 2d 655 (D.S.C. 2011).

In another notable decision, Childs struck down South Carolina’s absentee ballot witness requirements, finding the requirements to violate voters’ rights given the Covid-19 pandemic. However, Childs’ ruling was overturned by the U.S. Supreme Court, which reinstated the requirement. See Adam Liptak, Supreme Court Revives Witness Requirement for South Carolina Absentee Ballots, N.Y. Times, Oct. 6, 2020.

Sitting by Designation on Fourth Circuit

During her time on the district court, Childs sat by designation numerous times on the Fourth Circuit. Among her decisions in so sitting, Childs joined the court in reversing a grant of summary judgment to defendants in a Title VII action, noting that the denial of a better severance package could constitute an adverse employment action under Title VII. See Gerner v. Cnty. of Chesterfield, 674 F.3d 264 (4th Cir. 2012). In another opinion, Childs joined a unanimous court in affirming a life imprisonment sentence for a defendant convicted of drug trafficking. U.S. v. Edmonds, 679 F.3d 169 (4th Cir. 2012).

Writings and Statements

Throughout her life and career, Childs has frequently commented on the law and her role as judge. For example, as a state court judge, Childs authored one of a collection of letters published by the ABA Commission on Women in the Profession, in which she discussed her rise to become a judge. See Judge J. Michelle Childs, The Letter and the Spirit, 48 Judges’ Journal 23 (Fall 2009). In the piece, Childs notes that a judges is a “public citizen who bears a special responsibility for the quality of our justice system.” and adds: “[Judges] are charged with the spirit as well as the letter of the law in orderly decision making.” Id. at 26.

Overall Assessment

As an appellate nominee, Childs is hard to challenge as well qualified, with more than a decade on the federal bench and three decades of legal experience. However, the key backdrop to Childs’ nomination is the Supreme Court vacancy left by Justice Stephen Breyer. It is an open secret that Childs is being considered for the Supreme Court (although sources vary on how strongly) and that she is the preferred candidate of GOP Sen. Lindsey Graham, one of the few Senate Republicans to consistently support Biden judicial nominees.

Regardless of whether Childs is nominated for the high court or remains pending for the D.C. Circuit, her nomination is likely to face the same fate, a comfortable confirmation with a handful of GOP senators in support.

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Nancy Abudu – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Nancy Abudu, currently litigating with the Southern Poverty Law Center, has spent her career working on a number of legally and politically salient issues, leaving a long paper trail for opponents to mine.

Background

Born in Alexandria Virginia to an immigrant family from Ghana, Nancy Gbana Abudu graduated from Columbia University in 1996 and from Tulane University Law School in 1999. While in law school, Abudu participated as a student attorney with the Tulane Environmental Law Clinic. See Leslie Zganjar, Judge Orders Hearing on Possible DEQ Bias, A.P. State & Local Wire, Aug. 31, 1998.

Upon graduation, Abudu joined Skadden Arps Slate Meagher & Flom LLP as an Associate. In 2002, she became staff attorney with the Eleventh Circuit Court of Appeals. In 2005, Abudu joined the American Civil Liberties Union, eventually becoming the Legal Director of the ACLU of Florida.

In 2019, Abudu joined the Southern Poverty Law Center in Atlanta, where she works as interim director for strategic litigation.

History of the Seat

Abudu has been nominated for a Georgia based seat on the U.S. Court of Appeals for the Eleventh Circuit. This seat opened on September 30, 2021, when Judge Beverly Martin left the court.

Legal Experience

Setting aside brief stints at Skadden Arps and as a staff attorney with the Eleventh Circuit, Abudu has spent virtually her entire legal career as a civil rights attorney, at the ACLU Voting Rights Project, at the ACLU of Florida, and at the Southern Poverty Law Center.

From 2005 to 2013, Abudu worked at the ACLU Voting Rights Center. Among the prominent cases she argued there, Abudu unsuccessfully challenged felon disenfranchisement provisions in Mississippi, see Young v. Hosemann, 598 F.3d 184 (5th Cir. 2010), Arizona, see Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010), and in Tennessee. See Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010).

From 2013 to 2019, Abudu led the ACLU of Florida as Legal Director (full disclosure, the current Legal Director of the ACLU of Florida, Daniel Tilley, wrote a number of pieces for this blog). Among the matters she handled with the office, Abudu challenged residency restrictions on convicted sex offenders, arguing that they were unconstitutionally restrictive. Doe v. Miami-Dade Cnty., 846 F.3d 1180 (11th Cir. 2017). She also unsuccessfully challenged Palm Beach County’s policy of suspicionless drug testing for applicants to be substitute teachers. See Fridenberg v. Sch. Bd. of Palm Beach Cnty., 911 F.3d 10 (11th Cir. 2018).

In other suits, Abudu challenged Felon reinfranchisement provisions passed by the Florida legislature, arguing that they were discriminatory based on gender. See Jones v. Gov. of Florida, 15 F.4th 1062 (11th Cir. 2021). However, this argument was rejected by the Eleventh Circuit, who found that the suit could only succeed with evidence of intentional discrimination, and such evidence was lacking. See id. at 1065. Abudu also submitted Florida’s felon disenfranchisement policies to the United Nations Committee on Human Rights for review of human rights violations. Press Release, American Civil Liberties Union of Florida, Democracy Imprisoned (Sept. 25, 2013).

On the First Amendment side, Abudu sued Brevard County to enjoin the County’s policy of refusing to allow atheists or secular humanists to deliver county invocations. See Williamson v. Brevard Cnty., 276 F. Supp. 3d 1260 (M.D. Fla. 2017).

Since 2019, Abudu has worked for the Southern Poverty Law Center. Among the suits she handled there, Abudu joined the ACLU of Florida in a suit unsuccessfully challenging the denial and delay in hormone therapies to a transgender inmate. Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257 (11th Cir. 2020).

Writings and Speeches

In her role at the ACLU and at the SPLC, Abudu has written and spoken extensively on legal and political issues. For example, Abudu debated conservative Hans Von Spakovsky at a Federalist Society Forum in 2011. See Kent Scheidegger, Felon Voting Podcast, Crime and Consequence, Feb. 3, 2012. Abudu has also spoken out against voter ID laws. See Seth Stern, Officials Block Texas Voter ID Law; Justice Department Rules Requirement Biased, Could Disproportionately Harm Minority Voting, Charleston Daily Mail, Mar. 13, 2012. Some of her writings are summarized below.

School to Prison Pipeline

In 2017, Abudu co-authored a paper with Prof. Ron Miles criticizing the expansion of the School-to-Prison pipeline, or the over-disciplining of juvenile offenses in a manner that increases the likelihood of adult re-offending. See Nancy G. Abudu and Ron E. Miles, Challenging the Status Quo: An Integrated Approach to Dismantling the School-to-Prison Pipeline, 30 St. Thomas L. Rev. 56 (Fall 2017). In the paper, Abudu criticizes “zero-tolerance” disciplinary policies and similar mechanisms as drawing on the same fears that underlay school segregation. See id. at 57-58. For example, Abudu notes: “Oftentimes, the unstated goal behind these practices is to prove the fiction that minority children have a predisposition for bad behavior, even though decades of social science research recognizes the role of implicit bias with respect to enforcing school disciplinary policies.” Id. at 58. Abudu also criticizes legal schemes that limit liability for School Resource Officers “SROs” who injure children. Id. at 60. Instead, Abudu advocates for “restorative justice” and an increased focus on civil diversion. Id. at 64-66.

Gerrymandering

In a 2020 paper, Abudu was critical of the use of political gerrymandering to dilute minority votes, describing the practice as one that “cements historical forms of segregation, especially in the areas of housing and education.” Nancy G. Abudu, Following the Blueprint: How a New Generation of Segregationists is Advancing Racial Gerrymandering, 45 Human Rights 20 (2020). Noting the unwillingness of courts to overturn gerrymanders, Abudu argues that the solution can be to “pressure and shame elected officials” into opposing racial gerrymanders. Id. at 23.

Overall Assessment

Throughout her career, Abudu has not hesitated in taking strong positions on the law, even where a court has ultimately disagreed. While her advocacy is likely appreciated by her clients, it is also likely to draw strong opposition from those who oppose the positions she has taken. Republicans may particularly highlight Abudu’s presentation of Florida’s felon disenfranchisement policies to the UN Commission on Human Rights, arguing that the move approves international oversight over American policies. Ultimately, while Abudu is unlikely to get much bipartisan support, she also remains a favorite for confirmation.

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

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

Background

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

History of the Seat

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

Legal Experience

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

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

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

Statements and Writings

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

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

Overall Assessment

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

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

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

Background

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

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

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

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

History of the Seat

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

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

Legal Career

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

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

Political Activity

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

Jurisprudence

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

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

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

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

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

Overall Assessment

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

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

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

Background

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

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

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

History of the Seat

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

Political Activity

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

Legal Career

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

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

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

Jurisprudence

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

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

Writings

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

Overall Assessment

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

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

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

Background

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

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

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

History of the Seat

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

Legal Experience

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

Munger Tolles and Olson

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

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

Governor Brown’s Office

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

Jurisprudence

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

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

Overall Assessment

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

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

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

Background

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

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

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

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

History of the Seat

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

Writings and Statements

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

Legal Experience

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

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

Jurisprudence

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

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

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

Overall Assessment

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

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