Katherine Crytzer – Nominee to the U.S. District Court for the Eastern District of Tennessee

36-year-old Katherine Crytzer was already before the Senate seeking an executive appointment when she was nominated for a federal judgeship.  While Crytzer’s nomination to be Inspector General was never confirmed by the Senate, her nomination to be a federal judge remains an open question.

Background

Born in 1984, Katherine A. Crytzer graduated from Middle Tennessee State University in 2006 and attended George Mason University Law School, graduating in 2009.  Crytzer then clerked for Judge Steven Colloton on the U.S. Court of Appeals for the Eighth Circuit.

After her clerkship, Crytzer joined Kirkland & Ellis as an associate.  In 2014, Crytzer joined the U.S. Attorney’s Office for the Eastern District of Kentucky as a federal prosecutor.  In 2017, Crytzer joined the Office of Legal Policy at the Department of Justice.  Since 2020, Crytzer has served as Principal Deputy Assistant Attorney General for the Office of Legal Policy in the Department of Justice.

In 2020, Crytzer was nominated to be the Inspector General for the Tennessee Valley Authority, replacing acting Inspector General Jill Matthews.[1]  However, Crytzer’s nomination came under fire for her refusal to disavow the Administration’s practice of dismissing Inspector Generals for their investigation and oversight activities.[2]  Crytzer’s nomination cleared the Senate Environment and Public Works Committee by a narrow 12-11 vote, but never received a vote on the Senate floor.

History of the Seat

Crytzer has been nominated to fill a seat on the U.S. District Court for the Eastern District of Tennessee.  This seat opened on September 10, 2020, with the untimely death of Judge Pamela Reeves.

Legal Career

Crytzer started her legal career by clerking on the U.S. Court of Appeals for the Eighth Circuit and then in private practice at Kirkland & Ellis.  While at the firm, Crytzer was part of a legal team that challenged California’s Low Carbon Fuel Standard as being pre-empted by federal law, and discriminating against interstate commerce in violation of the Dormant Commerce Clause.[3]

From 2014 to 2017, Crytzer worked as a federal prosecutor in the U.S. Attorney’s Office for the Eastern District of Kentucky.  As a prosecutor, Crytzer argued before the Sixth Circuit in support of the stop, detention, and frisk of suspected drug traffickers.[4]  A 2-1 decision of the Sixth Circuit held that the Officer lacked probable cause for the frisk, and vacated the conviction.[5] 

Since 2017, Crytzer has worked at the Department of Legal Policy, working primarily on judicial nominations.  In this role, Crytzer helped “shepherd” the nomination of Justice Brett Kavanaugh through the Senate.[6]

Writings

As a law student, Crytzer authored a law review article considering when, under Supreme Court precedent, the publication of unfavorable information about a public employee implicates their due process interests.[7]  Crytzer argued that the Supreme Court should confirm an “actual publication” test adopted by two circuits, holding that the only way that an employee’s due process rights would be harmed is with the “actual publication” of the unfavorable information to third parties.[8]

Overall Assessment

With less than ten weeks left in the Trump Presidency, Crytzer faces a narrow window for confirmation.  Additionally, given her youth, the opposition to her executive appointment, and her work on Justice Kavanaugh’s confirmation process, Crytzer is likely to be considered a controversial nominee.


[1] Georgiana Vines, Katie Crytzer Introduced as Potential TVA Inspector General, Knox News, May 31, 2020, https://www.knoxnews.com/story/news/columnists/georgiana-vines/2020/06/01/katie-crytzer-introduced-potential-tva-inspector-general/5284749002/.

[2] Newswire, Democrats Balk at TVA Inspector General Pick, Greenwire, July 1, 2020.

[3] See Rocky Mt. Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2012).

[4] See United States v. Noble, 762 F.3d 509 (6th Cir. 2014).

[5] See id. at 529.

[6] See Jerry Lambe, Trump’s Latest Judicial Nominee Is DOJ Attorney Who Helped Kavanaugh’s Confirmation to Supreme Court, Newstex Blogs, Sept. 16, 2020.

[7] Katherine Crytzer, You’re Fired! Bishop v. Wood: When Does a Letter in a Former Public Employee’s Personnel File Deny a Due Process Liberty Right, 16 Geo. Mason L. Rev. 447 (Winter 2009).

[8] See id. at 449.

Hector Gonzalez – Nominee to the U.S. District Court for the Eastern District of New York

Hector Gonzalez is a well-experienced litigator whose strong Democratic party ties should win him support from Senators Chuck Schumer and Kirsten Gillibrand.  However, given the short window for confirmation left in the Senate calendar, Gonzalez is an underdog for confirmation.

Background

The 57-year-old Gonzalez got his B.S. from Manhattan College in 1985 and then attended the University of Pennsylvania Law School, graduating in 1988.[1] 

After graduation, Gonzalez started as an associate at Rogers & Wells and then joined the Manhattan District Attorney’s Office as an Assistant District Attorney in 1990.  Gonzalez then shifted over to federal prosecution in 1994, working his way to Chief of the Narcotics Unit at the U.S. Attorney’s Office of the Southern District of New York.[2] 

In 1999, Gonzalez became a Partner at Mayer Brown and moved to Dechert LLP in 2011, where he currently works and chairs the Global Litigation Practice.[3] 

In 2014, Gonzalez was recommended for a seat on the New York Court of Appeals (which ,despite its name, is New York’s highest court), but Judge Eugene Fahey was appointed instead.[4]

History of the Seat

Gonzalez has been nominated for a seat on the U.S. District Court for the Eastern District of New York to the seat vacated by Judge Brian Cogan on June 12, 2020.

Legal Career

While Gonzalez started his career as a firm associate, his first major position was as an Assistant U.S. Attorney for the Southern District of New York.  In the U.S. Attorney’s Office, Gonzalez rose to be Chief of the Narcotics Unit, practicing both at the trial level and the Second Circuit.  In 1999, Gonzalez moved to Mayer Brown Rowe & Maw LLP.  At Mayer Brown, Gonzalez notably was one of the lead attorneys represented telecommunications companies in the landmark Bell Atlantic v. Twombly case, which tightened pleading requirements for plaintiffs in the federal government.[5]

Since 2011, Gonzalez has been a Partner with Dechert LLP.  While at the firm, Gonzalez represented the Takata Corporation in investigations of airbag inflator ruptures.[6]  He also represented the Bank of New York Mellon in a series of investigations and litigation.[7]

Political Activity

Gonzalez’s political history is strongly Democratic.  Over the course of his career, Gonzalez has given to President Obama, Hillary Clinton, Sen. Kirsten Gillibrand, a number of New York house members, and Montana Governor Steve Bullock.[8]

Civilian Complaint Review Board

In 2002, Gonzalez was named by New York City Mayor Michael Bloomberg to be Chairman of the Civilian Complaint Review Board, an independent agency that investigates police misconduct.[9]  Gonzalez’s tenure almost immediately was bogged in controversy when a whistleblower claimed that the agency ignored racial discrimination and was biased towards police.[10]  As Chairman, Gonzalez pushed back against strip searching practices in the NYPD, recommending new training on the issue.[11]  Additionally, Gonzalez led the Board as it charged a deputy chief with misconduct for ordering the arrest of a protester at the 2004 Republican National Convention.[12]  The action, and related statements, drew sharp criticism from NYPD Commissioner Raymond Kelly, who argued that the Department had been careful in its policing.[13]  He also paradoxically was criticized for not doing enough to reign in the Police Department.[14]

Overall Assessment

Gonzalez’s record overall is fairly liberal, and his nomination by the Trump Administration is likely a nod to New York’s Democratic senators.  Nonetheless, given the short window of confirmation left this year, Senate Republicans are unlikely to prioritize Gonzalez’s nomination.  Additionally, Gonzalez is likely to face questions about his tenure supervising police misconduct issues with the NYPD, particularly given the recent focus on the role of policing in society.

Given these factors, Gonzalez is unlikely to be confirmed this year, although he may be renominated next year by a re-elected Trump Administration or by a President Biden.


[1] Hector Gonzalez, Profile, Dechert.com, available at https://www.dechert.com/people/g/hector-gonzalez.pdf (last visited Aug. 21, 2020).

[2] See Peter Lattman, Lead Rajaratnam Prosecutor to Join Dechert, N.Y. Times Blogs, Jan. 13, 2012.

[3] Denise Champagne, COA Nominees Forwarded to Governor, Daily Record of Rochester, Dec. 2, 2014.

[4] See id.

[5] See Twombly v. Bell Atl. Corp., 425 F.3d 99 (2d Cir. 2004).

[6] See Gonzalez, supra n. 1.

[7] See id. 

[9] Diane Cardwell, Bloomberg Fills Gaps, Naming Four to Posts In His Administration, N.Y. Times, Apr. 5, 2002.

[10] Kevin Flynn, Civilian Board on Police Misconduct Defends Itself on Claim That It is Soft, N.Y. Times, Sept. 25, 2002.

[11] William Rashbaum, Police Complaint Board Finds Some Strip Searches Improper, N.Y. Times, May 13, 2004.

[12] Jim Dwyer, Charges, But No Penalty, for a Chief’s Role in a Convention Arrest – Correction Appended, N.Y. Times, Mar. 9, 2006.

[13]See Bradley Hope, Complaints Spike But Police Punish Fewer Officers, N.Y. Sun, June 30, 2006.

[14] See CCRB: Dead Board Walking, NYPD Confidential, Sept. 18, 2006, http://nypdconfidential.com/print/2006p/060918p.html. 

Kathryn Kimball Mizelle – Nominee to the U.S. District Court for the Middle District of Florida

Kathryn Kimball Mizelle has the distinction of being the youngest federal judicial nominee since Alex Kozinski was tapped to the U.S. Claims Court in 1982.  Despite sterling academic credentials, senators may question if Mizelle, who has spent only four years in practice, has the experience to serve as a federal judge.

Background

Mizelle, born Kathryn Kimball, graduated summa cum laude from Covenant College in 2009 and then from the the University of Florida Levin College of Law in 2012, graduating top of her class.[1]  After graduating, Mizelle clerked for Judge James Moody on the U.S. District Court for the Middle District of Florida and then for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.[2]

After her clerkships, Mizelle joined the U.S. Department of Justice Tax Division, while also serving as a year as a Special Assistant U.S. Attorney in the Eastern District of Virginia.[3]  In 2017, Mizelle left to serve as Counsel to Assistant Attorney General Rachel Brand and then to clerk for Judge Gregory Katsas on the U.S. Court of Appeals for the D.C. Circuit.[4]  She followed it up with a clerkship with Justice Clarence Thomas on the U.S. Supreme Court.

Since 2019, Mizelle has served as an Associate in the Washington D.C. and Miami offices of Jones Day.

History of the Seat

While Mizelle’s nomination has not been formally submitted to the Senate yet, she is expected to be nominated for the seat vacated on July 12, 2020, when Judge Virginia Hernandez Covington moved to senior status.

Legal Experience

Eight years out of law school, Mizelle has spent approximately half her legal career as a law clerk, assisting federal judges on the district, appellate, and supreme court level.  The remaining four years of legal experience Mizelle has includes her time at the Tax Division of the Department of Justice, the U.S. Attorney’s Office, the Assistant Attorney General’s Office, and at Jones Day.  On the course of this time, Mizelle has tried two jury trials to verdict.[5]

Most of this litigation experience is from Mizelle’s year as a Special Assistant U.S. Attorney.  For example, during this time, Mizelle was one of the attorneys who handled a drug distribution prosecution.[6]  She was also lead attorney on the prosecution of Dujuan Thomas for conspiracy to distribute cocaine.[7]

Speeches

A member of the Federalist Society, Mizelle spoke on her clerkship with Justice Thomas at the 2020 Florida Chapters Conference of the Society.[8]  In her speech, Mizelle spoke approvingly of Justice Thomas’ jurisprudence and described him as the “greatest living American.”[9]  Mizelle also suggested that descriptions of Justice Thomas as a “bloodthirsty originalist” was complimentary.[10]

More controversially, Mizelle noted, in an offhand comment, that she believed that “paper money” was unconstitutional under the Coinage Power.[11]  This view, popular in fringe conservative circles, is explicitly contravened by the Supreme Court’s decisions in Knox v. Lee[12] and Parker v. Davis, which have affirmed the constitutionality of paper money.

Overall Assessment

Mizelle is undoubtedly very intelligent, with excellent academic credentials.  However, senators may reasonably question whether a 33 year old attorney who has only practiced law for four years has the requisite level of experience to serve in a lifetime appointment on the bench.  Additionally, Mizelle is likely to draw questions about her views on the constitutionality of paper money, and critics may argue that her views are out of the legal mainstream.  Given her youth, relative lack of experience, brief window to confirmation, and controversial statements, Mizelle is likely to have a tough confirmation.  Nonetheless, if Republicans stick together and prioritize the nomination, they may squeeze it through before the end of the year.


[1] Paige Fry, UF Alumna Makes History As First Supreme Court Clerk From Levin, Independent Florida Alligator, Sept. 15, 2016.

[2]See Kathryn Kimball Mizelle, Linkedin Profile, https://www.linkedin.com/in/kathryn-kimball-mizelle-a47196185/ (last visited Sept. 7, 2020).

[3] See id.

[4] Id.

[5] See Sen. Comm. on the Judiciary, 116th Cong., Kathryn Kimball Mizelle: Questionnaire for Judicial Nominees 17.

[6] See United States v. Major, 198 F. Supp. 3d 558 (E.D. Va. 2016).

[7] See Thomas v. United States, 2015 U.S. Dist. LEXIS 148492, Criminal Action NO. 1:13-cr-00135 (E.D. Va. Oct. 28, 2015).

[8] Colin Kalmbacher, Trump Nominates Former Clarence Thomas Clerk Who Graduated Law School in 2012 to Lifetime Judgeship, Newstex Blogs, Aug. 12, 2020.

[9] See id. (quoting Kathryn Mizelle).

[10] See id.

[11] See id.

[12] 79 U.S. 457 (1871).

David Woll – Nominee to the U.S. District Court for the Eastern District of New York

David C. Woll has already had his nomination to a senate confirmed position fail before the Republican Senate.  Now, Woll faces a tricky path to confirmation through Democratic Senators Chuck Schumer and Kirsten Gillibrand.

Background

David Carey Woll Jr. received a B.A. from the University of Maryland and a J.D. from the University of Virginia School of Law.[1]  Woll then joined the Securities & Exchange Commission as a Senior Counsel before becoming an Assistant U.S. Attorney for the District of Columbia.[2]

Woll then became a federal prosecutor in Brooklyn, focusing on financial and white collar crimes.[3]  In 2013, Woll was selected by Governor Chris Christie to handle disaster relief in the aftermath of Hurricane Sandy.[4] 

Since 2018, Woll has served as Principal Deputy Assistant Secretary for the Office of Community Planning and Development at the Department of Housing and Urban Development.  On August 1, 2019, Woll was nominated by President Trump to be Assistant Secretary for the Department of Housing and Urban Development.  While his nomination was approved on a 16-9 vote by the Senate Banking, Housing, and Urban Development Committee, his nomination never received a vote on the Senate floor and was withdrawn by the Administration on March 18, 2020.

History of the Seat

Woll has been nominated for a seat on the U.S. District Court for the Eastern District of New York.  While the seat to which he will be nominated has not been specified, it will either be the vacancy that opened with Judge Dora Irizarry’s move to senior status on January 26, 2020 or the seat vacated by Judge Brian Cogan on June 12, 2020.

Legal Experience

Woll started his legal career at the Securities and Exchange Commission, where he worked as Senior Counsel.[5]  There, he handled a case against a securities boiler room that was targeting elderly investors.[6]  Then, as an Assistant U.S. Attorney in the District of Columbia, Woll prosecuted violent and sex crimes.[7] 

In 2007, Woll was one of the attorneys hired by DOJ attorney Monica Goodling as part of an improper politicized hiring process she conducted.[8]  Woll was asked during his interview whether he had ever “cheated on his wife.”[9]  Woll would become a federal prosecutor in Brooklyn, handling white collar and financial prosecutions.

Since 2018, Woll has served as Principal Deputy Assistant Secretary for the Office of Community Planning and Development at the Department of Housing and Urban Development.  However, Woll’s tenure at HUD was criticized by Sen. Sherrod Brown for not being responsive to Congress and for failing to provide timely aid to Puerto Rico after Hurricane Maria.[10]  Brown also criticized Woll’s office for releasing a proposed rule that would weaken anti-discrimination provisions in housing for LGBTQ individuals.[11]  Woll’s reluctance to release funds to Puerto Rico was also criticized by members of the House of Representatives.[12]  In testimony before the House, Woll admitted that he had failed to comply with a Congressional deadline for releasing hurricane relief.[13]

Political Activity

Woll is a Republican, and all his political contributions of record have been to Republicans, including a contribution to President Trump’s re-election in 2020 and to John McCain in 2008.[14] 

Overall Assessment

The odds are stacked against Woll’s confirmation to the district court.  First, there are only four months left for Senate action on the nomination.  Second, the controversies regarding Woll’s views on LGBT protections in federal housing, and regarding his failure to comply with congressional deadlines on Puerto Rico relief make him a very controversial nominee.  As Woll has been nominated to the district court, his nomination can be blocked through blue slips, and it’s unlikely that New York’s senators will return their blue slips on the nomination.


[1] See Opening Statement of David C. Woll, Nominations Hearing, Senate Committee on Banking, Housing, and Urban Development, available at https://www.banking.senate.gov/hearings/11/07/2019/nomination-hearing (last visited Aug. 21, 2020).

[2] See id. 

[3] See id.

[4] Id.

[5] See id.

[6] See Woll, supra n. 2 at 16.

[7] EEOC v. Local 638, 117 F. Supp. 2d 386 (S.D.N.Y. 2000).

[8] See Eric Lipton, Colleagues Cite Partisan Focus By Justice Official, N.Y. Times, May 12, 2007.

[9] See Greg B. Smith, Mob Dials for Dough Say Millions Swindled Using Tiny Midwest Firm, N.Y. Daily News, Sept. 19, 2004.  

[10] See Statement of Sen. Sherrod Brown, Markup, Senate Committee on Banking, Housing, and Urban Development, Dec. 10, 2019, available at https://www.banking.senate.gov/hearings/executive-session-to-consider-nominations (last visited Aug. 21, 2020).

[11] Id.

[12] See Report: Puerto Rico’s Infrastructure Failing As Relief Stalls, Congressional Quarterly News, Nov. 12, 2019.

[13] Nicole Acevedo, HUD Officials Knowingly Failed ‘To Comply With The Law’ Stalled Puerto Rico Hurricane Relief, NBC News, Oct. 18, 2019, https://www.nbcnews.com/news/latino/hud-officials-knowingly-failed-comply-law-stalled-puerto-rico-hurricane-n1068761.

[14] See Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=david+woll (last visited Aug. 21, 2020).

Benjamin Beaton – Nominee to the U.S. District Court for the Western District of Kentucky

Ohio litigator Benjamin Beaton is a conservative who clerked for one of the Supreme Court’s more liberal jurists.  Now, Beaton has been nominated for a vacancy on the Western District of Kentucky.

Background

A native of Paducah in Western Kentucky, Benjamin Beaton was born in 1981.  He received his B.A. summa cum laude from Centre College in 2003 and his J.D. cum laude from Columbia University Law School in 2009, working for Rep. Edward Whitfield in between.[1]  After law school, Beaton clerked for Judge Arthur Raymond Randolph on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Ruth Bader Ginsburg on the U.S. Supreme Court.[2]  Beaton also spent several months in Uganda as a legal fellow with the International Justice Mission.

After his clerkship, Beaton joined Sidley Austin in Washington D.C.  He is currently a Partner in the Cincinnati office of Squire Patton Boggs.

History of the Seat

Walker has been nominated for a vacancy on the U.S. District Court for the Western District of Kentucky.  This seat will open in September when Judge Justin Walker, another McConnell protege, will move to the D.C. Circuit.

Legal Experience

Beaton has practiced civil and criminal litigation at the firms of Sidley Austin and Squire Patton Boggs.  While at Sidley Austin, Beaton was one of the lead attorneys in a suit challenging the Environmental Protection Agency’s Cross-State Air Pollution Rule.[3]  The rule regulates the emissions of certain gases between “upwind” and “downwind” states.  After a divided panel of the D.C. Circuit blocked the rule, the Supreme Court reversed and remanded.[4]  On remand, in an opinion by Justice Kavanaugh, the D.C. Circuit blocked the rule.[5]

Among other significant matters he has handled, Beaton represented a hospital in procedures before the Kentucky Supreme Court challenging a discovery order that required turning over patient safety work product from the hospital’s records.[6]  Beaton persuaded the Kentucky Supreme Court to overturn a prior plurality opinion and hold that the information at issue in the case was privileged and protected.[7]

Writings

Throughout his career, Beaton has frequently spoken and written on the law.  For example, in one speech at Western Kentucky University, Beaton described his experience with the “professionalism” of the Supreme Court, noting examples of collegiality and problems on the Supreme Court.[8]  Beaton also runs the Sixth Circuit Appellate Blog.  Among his dossier of writings, two papers are of particular significance.

Walking the Federalist Tightrope

While a law student at Columbia, Beaton authored an article discussing a potential framework for intrastate development and use of health information technology (“HIT”), and the development of a model of interstate cooperation to improve healthcare outcomes consistent with the federalist structure of government.[9]  In the paper, Beaton notes that the federal government has largely failed in developing regulation to provide a clear framework for development of HIT and that states have been forced to act to fill this vacuum.[10]  Beaton argues for a federally established and managed “forum for interstate collaboration,” which mandates information sharing and that states would be required to participate in.[11] 

Pragmatism of Interpretation

In 2018, Beaton reviewed Judge Richard Posner’s book Richard A. Posner, The Federal Judiciary, alongside Judge Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit.[12]  The review challenges the central thesis of Posner’s book, that judges use overly formal legal principles in order to disguise result-oriented decisionmaking in the veil of objectivism, and that judges should avoid this by adopting “judicial pragmatism” making decisions with a practical eye towards “socially beneficial effects.”[13]  Beaton and Thapar argue that Posner’s solution would create more result-oriented decisionmaking, not less, and that the real solution to overly formal decisionmaking is to focus on text and precedent.[14] 

Overall Assessment

While still under the age of forty, Beaton has significant litigation experience, a prestigious Supreme Court clerkship, solidly conservative credentials (including membership in the Federalist Society), and a paper trail reflecting a penchant for textualist and originalist judging.  All of this adds up to a conservative but confirmable nominee.

Senators may raise concerns that Beaton lacks the twelve years of practice experience the ABA seeks as a base level of qualifications, but proponents will note his Supreme Court clerkship.  Other Senators may oppose Beaton based on his litigation against EPA anti-pollution rules.  However, these concerns should not affect his confirmation.  Given that he hails from the state of Kentucky, expect the Majority Leader to pull out the stops to get Beaton on the bench before the end of the year.


[1] See Leanne Fuller, Trump Nominates Paducah Native for Federal Judgeship, WPSD Local 6, Aug. 12, 2020, https://www.wpsdlocal6.com/news/trump-nominates-paducah-native-for-federal-judgeship/article_71a5cb46-dcf4-11ea-9bb0-2f9a3c5e1b68.html.

[2] Id.

[3] See EME Homer City Generation LP v. EPA, 795 F.3d 118 (D.C. Cir. 2015).

[4] See EME Homer, 134 S.Ct. 1584 (2014).

[5] See EME Homer, supra n. 3 at 124.

[6] Baptist Health Richmond, Inc. v. Clouse, 497 S.W.3d 759 (Ky. 2016).

[7] See id. at 766.

[8] Jack Dobbs, Beaton Discusses Civility, Professionalism in the Supreme Court, College Heights Herald: Western Kentucky University, Nov. 15, 2018.

[9] Benjamin J. Beaton, Walking the Federalist Tightrope: A National Policy of State Experimentation For Health Information Technology, 108 Colum. L. Rev. 1670 (Nov. 2008).

[10] See id. at 1687-88.

[11] See id. at 1699.

[12] See Amul R. Thapar and Benjamin J. Beaton, The Pragmatism of Interpretation: A Review of Richard A. Posner, The Federal Judiciary, 116 Mich. L. Rev. 819 (April 2018).

[13] See id. at 823.

[14] See id. at 827-28.

Ryan McAllister – Nominee to the U.S. District Court for the Northern District of New York

With the 116th Congress ticking down, the Trump Administration is running out of time to fill vacancies before the 2020 presidential election.  After previous nominee Thomas Marcelle was blocked for a New York vacancy, Trump has put forward Stephen McAllister, an Albany based attorney.

Background

43 year old Ryan Thomas McAllister got his Bachelor of Arts from the Catholic University of America in 1999 and went on to earn his J.D. from Harvard Law School in 2002.[1]  After law school, McAllister clerked for Judge Richard Wesley on the New York Court of Appeals and then on the U.S. Court of Appeals for the Second Circuit after Wesley was confirmed to the federal bench.  McAllister then joined the Office of Gov. George Pataki as Assistant Counsel.[2]

After Pataki left office in 2006, McAllister joined the Albany office of Boies Schiller Flexner LLP as an Associate.[3]  In 2011, McAllister became Senior Counsel for the Senate majority of the New York State Senate while working as a solo practitioner in Albany.

In 2016, McAllister moved to Washington D.C. to work for U.S. Rep. John Faso.[4]  After Faso lost re-election in 2018, McAllister returned to Albany to become a Partner at Boies Schiller Flexner LLP, where he currently works.

History of the Seat

McAllister has been nominated to a seat on the U.S. District Court for the Northern District of New York.  This seat opened on January 1, 2016, when Judge Gary Sharpe moved to senior status.  While the seat opened with a year left in the Obama Administration, the Administration never extended a nominee for the vacancy and it was carried over into the Trump Administration.

In October 2018, upon the recommendation of two Republican Congressmen in New York, Lee Zeldin and John Faso, the White House nominated New York Judge Thomas Marcelle for the vacancy.  Marcelle had also been nominated for a federal judgeship by President George W. Bush but was blocked by Senator Charles Schumer.[5]  This time around, Marcelle was blocked by Sen. Kirsten Gillibrand over his record on abortion, and Marcelle withdrew his nomination in August 2019.[6]  On August 12, 2020, McAllister was nominated in a second attempt to fill this seat.

Legal Experience

McAllister’s legal career can be divided into his time in politics and his time in litigation.  In the former category, we can find McAllister’s role working for Gov. George Pataki, the New York State Senate, and Rep. John Faso.  In the latter, you have McAllister’s time at Boies Schiller and as a solo practitioner.  In these positions, McAllister largely focused on commercial litigation, as well as some criminal defense.

One of McAllister’s most notable cases was his role representing B.J.’s Wholesalers as a plaintiff in an action challenging anticompetitive activities conducted by industrial producers of chicken meat.[7]  

Political Activity

McAllister, a Republican, has worked closely in politics for much of his career, including working for Gov. George Pataki and Rep. John Faso.  McAllister also worked as a staffer for the Republican majority in the New York State Senate between 2011 and 2016.  Furthermore, in 2016, McAllister considered running for Congress but instead chose to support Faso.[8]

Additionally, McAllister has frequently donated to Republicans.[9]  In addition to Faso, McAllister has supported the Presidential campaigns of NYC Mayor Rudy Giuliani and Sen. Marco Rubio.[10] 

Overall Assessment

In theory, McAllister would not have been nominated to a district court seat without at least a preliminary sign-off from his home state senators.  That suggests at least some acquiescence by Senators Schumer and Gillibrand.  However, as the nomination of his predecessor showed, there’s many a slip between nomination and confirmation.  Given the close distance to the election, it is unlikely that New York’s senators will return blue slips on the nomination.  If they do, however, McAllister will likely be confirmed by the end of the year.


[1] Ryan McAllister, Linkedin.com, available at https://www.linkedin.com/in/ryan-mcallister-324871108/ (last visited Aug. 17, 2020).

[2] Id.

[3] Id.

[4] Id.

[5] Robert Gavin, Marcelle Seen in Line for Federal Judgeship, Houston Chronicle, May 4, 2018, https://www.chron.com/local/article/Marcelle-seen-in-line-for-federal-judgeship-12889507.php.

[6] Robert Gavin and Mike Goodwin, Gillibrand Blocks Area Judge’s Nomination, Albany Times Union, Aug. 30, 2019, https://www.pressreader.com/usa/albany-times-union/20190830/281535112661040.

[7] In re Broiler Chicken Antitrust Litig., 2020 U.S. Dist. LEXIS 36202, No. 16 C 8637 (N.D. Ill. Mar. 3, 2020) (Durkin, J.).

[8] See Joe Mahoney, Magee to Run Again; Delaware GOP Boss Eyes Tenney’s Seat, The Daily Star, Jan. 23, 2016.

[9] Federal Election Commission, Individual Contribution Lookup, https://www.fec.gov/data/receipts/individual-contributions/?contributor_name=Ryan+McAllister&contributor_state=NY (last visited Aug. 18, 2020).

[10] See id.

Edmund LaCour – Nominee to the U.S. District Court for the Middle District of Alabama

In 2019, when Alabama Solicitor General Andrew Brasher was confirmed to be a federal district court judge, a 34-year-old attorney named Edmund LaCour was tapped to replace him as Solicitor General.  Now, as Brasher has been confirmed to an appellate court, LaCour has been tapped again, this time to fill Brasher’s seat on the U.S. District Court.

Background

Edmund Gerald LaCour Jr. was born in 1985.  LaCour graduated summa cum laude from Birmingham-Southern College, received a Master of Arts from Trinity College Dublin and then a J.D. from Yale Law School.

Upon graduation, LaCour clerked for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.  He then joined the Houston office of Baker Botts as an Associate.  In 2015, LaCour shifted to Bancroft PLLC, a boutique litigation firm dominated by conservatives, in Washington D.C. before moving, along with the bulk of the firm, to Kirkland & Ellis in 2016.

In 2019, LaCour was appointed by Steve Marshall, the Attorney General of Alabama, to be Solicitor General, replacing Andrew Brasher, who was confirmed to a seat on the U.S. District Court for the Middle District of Alabama.  LaCour currently serves in that capacity.

History of the Seat

LaCour has been nominated for a seat on the U.S. District Court for the Middle District of Alabama.  This seat opened when Judge Andrew Brasher, who has already been confirmed by the Senate, took his seat on the Eleventh Circuit on June 30, 2020.  

Legal Experience

While LaCour started his career at Baker Botts working on relatively straightforward criminal and civil matters,[1] he has spent the latter part of his career working on litigation on conservative causes.  For example, at the boutique firm Bancroft PLLC, LaCour represented a Christian organization at NC State in seeking to enjoin a University requirement that they obtain a permit before soliciting students.[2][3]  Judge James Dever ended up enjoining the policy,[4] which prompted NC State to rewrite it.[5]  LaCour also represented Republican organizations seeking to set aside anti pay-to-play rules made by the Securities and Exchange Commission,[6] and sued to strike down registration fees on firearms in California.[7]  On a less controversial front, while at Kirkland, LaCour represented business owner in a landmark litigation seeking to narrowly interpret bankruptcy rulings made by the Supreme Court.[8] 

Since 2019, LaCour has served as Solicitor General of Alabama, in which capacity he has defended Alabama laws and convictions before state and federal courts.  While, at the time of his appointment, LaCour attracted some criticism for alleged ties to Russia,[9] such criticism has not resurfaced.

Among his defenses of Alabama laws, LaCour defended the state ethics laws against challenges that it was too vague,[10] and defended the state’s minimum wage law from a racial discrimination challenge.[11] 

On the flip side, LaCour has also used the Solicitor General’s office offensively, challenging laws and federal regulations.  For example, LaCour led a 21-state brief before the U.S. Supreme Court challenging Maryland gun regulations.[12]  He also led an amicus effort to support Texas’ efforts to limit reproductive health procedures during the Covid-19 pandemic.[13]

Political Activity

LaCour has frequently given to Republican committees and candidates.[14]  Among the recipients of his largesse are Sens. Ted Cruz and Josh Hawley, both of whom serve on the Senate Judiciary Committee, and West Virginia Attorney General Patrick Morrissey, who unsuccessfully ran for U.S. Senate in 2018.[15]

Overall Assessment

While LaCour is only 35 years old, he has racked up many accomplishments in his short career, including a significant amount of litigation experience.  However, much of his litigation has been in service of conservative causes, which will likely make him very controversial as a nominee.  As such, the key barrier for LaCour will be obtaining a blue slip from Democratic Senator Doug Jones.  If LaCour can do so, his nomination will likely be processed this year.  If not, LaCour will have to hope for a Trump re-election.


[1] See, e.g., Rogers v. United States, 561 F. App’x 440 (6th Cir. Mar. 31, 2014).

[2] See Press Release, Alliance Defending Freedom, Student Group Sues NC State for Requiring Permits for Any, All Speech, Apr. 26, 2016.

[3] See also Emery Dalesio, Christian Groups Challenge NC University’s Speech Permits, A.P. State & Local, June 2, 2016.

[4] Grace Christian Life v. Woodson, 2016 U.S. Dist. LEXIS 73376, 5:16-CV-202-D (E.D.N.C. June 4, 2016) (Dever, J.).

[5] See Press Release, Alliance Defending Freedom, NC State Revises Speech Policy After Losing Court Battle With Student Group, July 19, 2016.

[6] See Jack Casey, Why Republican State Committees Say Revised Rule G-37 Is Unconstitutional, Bondbuyer.com, May 18, 2016.  See also Tenn. Republican Party v. SEC, 863 F.3d 507 (6th Cir. 2017).

[7] Bauer v. Becerra, 858 F.3d 1216 (9th Cir. 2017).

[8] See Stephanie Gleason, District Court Affirms Narrowness of Stern v. Marshall, The Deal Pipeline, Sept. 26, 2018.

[9] See, e.g., Legal Schnauzer, Edmund LaCour Jr., Alabama’s New Solicitor General, Has Worked For Two Law Firms With Ties to Russia And Has Represented Gazprom, a Major Russian Energy Firm, Legal Schnauzer, May 22, 2019.

[10] See Kim Chandler, Former Alabama Speaker Asks Court to Overturn Conviction, A.P. State & Local, June 5, 2019.

[11] Press Release, Office of Attorney General Steve Marshall, Alabama A.G. Marshall Announced 11th U.S. Circuit Court of Appeals Victory for State of Alabama in Minimum-Wage Lawsuit, Dec. 13, 2019.

[12] See Steve Lash, ‘Shall Issue’ States Back Supreme Court Challenge to Md. Handgun Law, The Daily Record, Dec. 4, 2019.

[13] Kevin Stawicki, Justices Urged to Wade into Texas’ COVID Abortion Ban Fight, Law360, Apr. 13, 2020, https://www.law360.com/articles/1262858/justices-urged-to-wade-into-texas-covid-abortion-ban-fight.

[15] See id.

Taylor McNeel – Nominee to the U.S. District Court for the Southern District of Mississippi

After Judge Cory Wilson’s district court nomination was upgraded to the Court of Appeals, Biloxi attorney Taylor McNeel has been nominated to fill a vacancy on the U.S. District Court for the Southern District of Mississippi.

Background

Taylor Brantley McNeel was born in or around 1983.  After getting a B.B.A. cum laude from the University of Mississippi, McNeel received his J.D. from the University of Mississippi Law School in 2008.  McNeel has spent his entire legal career at the firm of Brunini, Grantham, Grower & Hewes, PLLC in Biloxi Mississippi, where he currently serves as a Member.

History of the Seat

McNeel has been nominated for a vacancy on the U.S. District Court for the Southern District of Mississippi.  This seat opened on March 23, 2018, when Judge Louis Guirola took senior status.  The White House had previously nominated Mississippi Court of Appeals Judge Cory Wilson to this seat, but withdrew Wilson and nominated him for the Fifth Circuit, to which he was confirmed.  McNeel was then nominated on July 2, 2020.

Legal Experience

McNeel has spent his entire legal career at the firm of Brunini, Grantham, Grower & Hewes, PLLC in Biloxi Mississippi, where he currently serves as a Member.  At the firm, McNeel has handled both bench and jury trials in federal and state court, as well as appeals in the Mississippi Supreme Court and the Mississippi Court of Appeals, and the U.S. Court of Appeals for the Fifth Circuit.  For example, McNeel represented golf courses seeking to successfully dismiss an antitrust suit brought against them.  See Gulf Coast Hotel-Motel Ass’n v. Miss. Gulf Coast Golf Course Ass’n, 658 F. Supp. 3d 500 (S.D. Miss. 2011).  

On the state court side, McNeel convinced the Mississippi Court of Appeals to successfully dismiss charges against a casino he represented for allegedly giving food poisoning to patrons.  See McGinty v. Grand Casinos of Miss., Inc. – Biloxi, 245 So. 3d 555 (Miss. App. 2014). An appeal on the issue was later denied by the Supreme Court of Mississippi.  McGinty v. Grand Casinos of Miss., Inc. – Biloxi, 245 So. 3d 444 (Miss. 2018).

Overall Assessment

Despite McNeel’s youth, he has extensive litigation experience practicing before Mississippi’s state and federal courts.  While McNeel’s path to confirmation is complicated by the closing window of judicial confirmations, given the Republican majority, McNeel is favored for confirmation.  

 

Judge James Arguelles – Nominee to the U.S. District Court for the Eastern District of California

The Eastern District of California is one of the most heavily overworked courts in the country.  The Court has not been expanded in decades, even as caseloads explode, and has relied heavily on senior judges to carry the burden.  As such, judges on the court are expected to take senior status immediately upon eligibility to bring in reinforcements.  The court currently has two such vacancies, with commercial lawyer Dirk Paloutzian nominated to one seat, and Sacramento Superior Court Judge James Arguelles nominated for the other.

Background

The 54-year-old Arguelles has a long history with the military, having received his B.Sc. from the United States Naval Academy and a Master of Strategic Studies from the United States Army War College before he received a J.D. in 1996 from Harvard Law School.  He then clerked for Judge Marilyn Huff on the U.S. District Court for the Southern District of California for a year, before joining Gibson, Dunn, & Crutcher as an Associate.[1]

In 2000, Arguelles became a federal prosecutor with the U.S. Attorney’s Office for the Eastern District of California.[2]  In 2005, Arguelles joined Stevens, O’Connell & Jacobs as a Partner.  He held that post until he was appointed by Gov. Arnold Schwarzenegger to be a Superior Court judge in 2010.[3]

History of the Seat

Arguelles has been nominated to the U.S. District Court for the Eastern District of California, to a seat vacated on February 2, 2020 by Judge Lawrence O’Neill.  Arguelles’s nomination was announced on June 8, 2020, although he was not officially nominated until June 18, 2020.

Legal Experience

Arguelles started his legal career at the firm of Gibson, Dunn, & Crutcher, before spending five years as a federal prosecutor with the U.S. Attorney’s Office for the Eastern District of California.  As a prosecutor, Arguelles worked on a variety of criminal matters, with a focus on white collar and fraud cases.  For example, Arguelles prosecuted Wayne Anderson and Richard Marks for money laundering as part of their firm Anderson Ark & Associates.[4]  Arguelles also prosecuted Sacramento Water District Manager Dewight Kramer on charges of defrauding the U.S. government through, among other activities, destroying county water records.[5]

From 2005 to 2010, Arguelles was a Partner at Stevens, O’Connell & Jacobs.  Among the more notable cases he has handled with the firm, Arguelles represented Whirlpool Corporation in defending against a class action suit alleging excessive heat and damage from the self-cleaning system in Whirlpool Appliances.[6]  Arguelles was able to successfully have the suit dismissed for failure to state a claim.[7]

Jurisprudence

Since 2010, Arguelles has served as a judge on the Sacramento Superior Court.  In this role, he presides over trial court matters in criminal, civil, family, and other state law matters.  In his time on the bench, Arguelles has handled a number of high profile cases.  For example, Arguelles ordered the life sentence of Zavion Johnson set aside after new evidence cast doubt on the testimony from Johnson’s initial trial showing that his baby daughter died from “shaken baby” syndrome.[9] 

More recently, Arguelles oversaw the pretrial release hearing of Raymond John Garcia, who was arrested for “looting” in the aftermath of Black Lives Matter protests in the Sacramento area.[10]  The D.A. opposed Garcia’s release, arguing that Garcia represented a threat as he was on parole from an attempted murder conviction.[11]  However, Arguelles granted the pretrial release, noting the many letters of community support offered for Garcia.[12]

Overall Assessment

As a Republican judge in an increasingly Democratic state, Arguelles’ career advancement largely depends upon federal appointment.  Arguelles’ nomination probably means that California’s Democratic senators have, at least preliminarily, signed off on the nomination.  His path to confirmation depends on his ability to keep their support.


[1] Press Release, Office of Gov. Arnold Schwarzenegger, Gov. Schwarzenegger Appoints James Arguelles to Sacramento County Superior Court, Oct. 18, 2010 (available at Targeted News Service).

[2] Id.

[3] Id.

[4] See Denny Walsh, Two Californians Guilty of Money Laundering, Sacramento Bee, June 1, 2002.

[5] David Richie, Two Former Sacramento, Calif., Water Officials Face Fraud, Tax Charges, Sacramento Bee, Oct. 10, 2003.

[6] See Saaremets v. Whirlpool Corp., 2010 U.S. Dist. LEXIS 261 (E.D. Cal. Mar. 18, 2010).

[7] See id. at *26.

[8] See id.

[9] See Don Thompson, California Shaken Baby Conviction Set Aside After 15 Years, A.P., Dec. 8, 2017.

[10] See Anna Okada, Alleged Looter During Sacramento Police Brutality Protests Wins Pretrial Release After Outpouring of Community Support, Davis Vanguard, June 15, 2020, https://www.davisvanguard.org/2020/06/alleged-looter-during-sacramento-police-brutality-protests-wins-pretrial-release-after-outpouring-of-community-support/.  

[11] See id.

[12] See id.

Brenda Saiz – Nominee to the U.S. District Court for the District of New Mexico

Transportation attorney Brenda Saiz, who has spent virtually her entire life as a noncontroversial, apolitical litigator, has been nominated to join the federal bench in New Mexico.

Background

Brenda Saiz spent her educational years in New Mexico, getting a B.A. in English from the University of New Mexico in 1993 and a J.D. from the University of New Mexico Law School in 2003.[1]

Saiz has spent virtually her entire legal career at the firm of Rodey, Dickason, Sloan, Akin, & Robb, P.A., where she currently works as a Director.

History of the Seat

Saiz has been nominated for a seat on the U.S. District Court for the District of New Mexico.  This seat opened on July 1, 2019, when Judge Judith Herrera moved to senior status.  

Legal Career

Saiz has primarily spent her career as a transportation law attorney.[2]  Among her most notable cases, Saiz represented FedEx transport in a wrongful death suit brought as a result of a catastrophic accident in which a FedEx tractor-trailer struck the plaintiff’s vehicle.[3]  A jury awarded $165 million to the plaintiffs after a trial, and the verdict was upheld by the New Mexico Court of Appeals.[4] 

Saiz has also handled some non-transportation related matters.  For example, Saiz represented attorney Dennis Montoya, who was suspended from legal practice for one year by the New Mexico Supreme Court for repeated violations of the Rules of Professional Responsibility.[5]

Public Statements

Saiz has relatively few public statements that she has made on the law.  As a law student, Saiz authored an article discussing the New Mexico Court of Appeals case in Wallis v. Smith, which held that unintentionally fathering a child due to a misrepresentation regarding use of birth control is not actionable under the law.[6]  In the article, Saiz noted that many courts refused to create tort actions from the use or lack thereof of birth control because such actions would infringe upon the right to privacy recognized in the U.S. Constitution.[7]  Saiz endorsed the decision noting that it was supported by the “overriding interests of the child and the right to privacy.”[8]

Overall Assessment

As a relatively apolitical candidate for the bench, Saiz can be considered a fairly mainstream nominee.  Saiz has been relatively reticent in their legal career, and her few public statements, indicating support for the right of privacy in the Constitution, are unlikely to be sources of liberal opposition.  As such, assuming Republicans don’t oppose her, Saiz’s biggest obstacle to confirmation is the calendar rather than anything in her background


[1] Brenda M. Saiz, Rodey Law, https://www.rodey.com/attorney-profile.aspx?rlaid=9dfd465b-cd89-49f3-8767-33c0044443c6 (last visited Aug. 5, 2020).

[2] John Kingston, New Mexico Trucking Attorney Nominated for Seat on Federal Bench, Freight Waves, May 29, 2020, https://www.freightwaves.com/news/new-mexico-trucking-attorney-nominated-for-seat-on-federal-bench.

[3] Morga v. FedEx Ground Package Sys., 420 P.3d 586, 590 (N.M. App. 2018).

[4] Id. at 596.

[5] See In re Montoya, 150 N.M. 731 (2011).

[6] Brenda Saiz, Tort Liability When Fraudulent Misrepresentation Regarding Birth Control Results in the Birth of a Healthy Child – Wallis v. Smith, 32 N.M. L. Rev. 549 (Summer 2002).

[7] See id. at 557.

[8] Id. at 565.