Ten Questions Senators Should Ask Prospective Judicial Nominees

Nominations hearings are predictable.  Half the Senators on the Judiciary Committee fawn over the nominees, while the other half pepper them with hypotheticals and questions they know the nominee won’t answer.  For their part, the over-coached nominees avoid all but the softest of softballs, while firmly resisting any attempt to actually probe their thought processes.  As an interview process for a lifetime appointment, the nominations hearing rarely yields genuine insights.

This state of affairs cannot be blamed on one particular entity or party.  Rather, both parties have, over time, contributed to the current playing field, where all nominees need to do is to avoid ticking off the 50 senators they need to get confirmed.  As such, one wonders: how can this performative exercise be more useful?  How can a nominations hearing better illustrate a nominee’s temperament, philosophy, and ideology?

To that end, here are ten questions that, if asked and answered in good faith, can lend some authenticity to the process.  Now, nominees are mindful, of course, of their ethical obligations, and are unlikely to answer any questions regarding privileged communications or about contested matters they are likely to hear.  With that in mind, senators should ask:

What is a legal, political, social, or moral position you previously advocated for that you no longer believe to be correct?

This is a question that I’m surprised hasn’t been asked more to nominees.  Unlike hypothetical questions about future cases, nominees are generally free to say: “I argued X in this case. I lost. And I now realize that the judge got it right.”  Furthermore, getting an answer to this question establishes two important things: first, it affirms that the nominee is willing to acknowledge when they got things wrong and they’re willing to grow from their mistakes; and second, it establishes that they are not set in their views. They’re willing to grow and evolve, an important characteristic to inculcate in someone seeking a lifetime appointment.

When was the last time you changed your mind on a legal, political, or moral issue after a discussion with someone who holds a contrary position?

Federal judges, insulated by lifetime appointments, are constantly at risk of ossifying in their legal views, particularly if those views are never challenged in discussions or arguments.  However, there are many federal judges who maintain their intellectual curiosity even after joining the bench and who are willing to engage with critics and contrarians to better understand and shape their views.  The answer to this question demonstrates both that: 1. the nominee has an open mind and is willing to change their views when they’re wrong; and 2. they’re willing to engage with those they disagree with.

Name a Time in Which You were able to convince another person of the validity of your view/position after a discussion.

A corollary to the previous question, this question also has the benefit of reinforcing the nominee’s ability to persuade others of the positions they hold, particularly important in appellate nominees.

Name a policy/law/regulation that you oppose as a matter of policy but agree is constitutional under current precedent.

The wisdom of a particular law and policy is often equated with its constitutionality.  While there are exceptions (eg. Justice Thomas’ concurrence in Lawrence criticizing the Texas ban on sodomy while finding it constitutional), it is increasingly rare for a judge to find that a policy they find strongly objectionable is not barred by the Constitution or caselaw.  Asking this question will demonstrate that a nominee can parse the difference.

The issue with the question, of course, is that it requires the nominee to make a statement acknowledging the constitutionality of a hypothetical law, which may be barred where a future challenge to that law may come before the judge.  However, as long as the question is focused on relatively uncontroversial areas of law, the nominee may be able to permissibly answer.

Name a policy/law/regulation that you support as a matter of policy but agree is unconstitutional under current precedent.

This is arguably an even harder question to answer than the previous one.  It would require a nominee to acknowledge the current structure of limited government set out in the constitution and note that it prevents, for better or for worse, the government from meaningfully intervening in many problems.  It is nonetheless important that a nominee is able to acknowledge this fact.

What is one thing you would seek to change about the court you’re about to join?

From reforms to PACER to cameras in the courtroom, the movement to democratize access to the federal court system is growing.  An answer to this question should show that the nominee is willing to recognize the shortcomings of the court systems they are seeking to join, to rethink old orthodoxy, and to challenge the status quo in service of justice.

What have you done so far to give back to your community as a lawyer?  What will you do as a judge?

The federal bench has been rightly criticized for setting itself apart from the communities it serves.  As such, nominees who demonstrate a connection with their communities, whether it’s through pro bono service, volunteer work, or other forms of engagement are particularly valuable.  Answering this question would also lead the nominee to demonstrate their willingness to continue such acts as a judge.

What is a bias/prejudice that you currently struggle with?  How do you work to overcome that prejudice?

This is an important question and one that’s asked too little.  While acknowledging any bias or prejudice is widely seen as career suicide, the bottom line is that human beings almost innately carry biases and prejudices with them, and it is only by acknowledging and working against them that one can overcome those prejudices.  Such prejudices do not have to be based on race, gender, or such immutable characteristics.  One could, for example, carry a bias against working moms, against city-dwellers, against west-coast rap fans, against those cheering the Red Sox, or against any identifiable group.  It is particularly important for judicial nominees to acknowledge their biases and work to overcome them given the power and influence they are seeking to take on.

What is a quality you have seen in a judge that you would seek NOT to emulate on the bench?

As awkward as it may be for nominees seeking a judicial position to acknowledge, judges are human.  They are sometimes short-tempered, and often wrong.  A nominee needs to be able to recognize that judges do err and that it is just as important to learn from the mistakes of others as it is to learn from one’s own mistakes.

What is the Biggest Mistake You Have Made in Your Career?  How Would You Seek to Avoid It on the Bench?

And finally, a question that encapsulates the others asked before. One that requires the nominee to demonstrate introspection, forethought, self-awareness, open-mindedness, and a willingness to get things wrong.  Like it or not, all lawyers make mistakes.  The best among us learn and grow from them and it is essential that our judges do as well.

With the nominations hearing of Judge Ketanji Jackson beginning today, it will be interesting to see if the hearings follow the predictable patterns laid out over the past two decades.  If any of the above questions are asked and answered in good faith, however, it will yield significant insight into Judge Jackson’s approach to the bench and the kind of justice she would be.

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Judge Nina Wang – Nominee to the U.S. District Court for the District of Colorado

Judge Nina Wang has spent the better part of the last decade as a federal magistrate judge. That background, along with a relatively uncontroversial career, makes Wang favored to take a seat on the District of Colorado.

Background

Born in Taiwan, Wang attended Washington University in St. Louis graduating in 1994. Wang then received a J.D. from Harvard Law School in 1997.

After graduating, Wang joined Fried Frank Harris Shriver & Jacobsen as an associate before clerking for Judge Peter Messite on the U.S. District Court for the District of Maryland. Wang then spent four years as an Assistant U.S. Attorney in Colorado.

In 2004, Wang joined the Denver Office of Faegre Drinker, where she worked until 2015, when she was appointed to be a U.S. Magistrate Judge.

History of the Seat

Wang has been nominated for a vacancy on the U.S. District Court for the District of Colorado. This seat will open on July 15, 2022 when Judge Christine Arguello takes senior status. Wang was previously recommended by Colorado Senators Michael Bennet and John Hickenlooper to replace Judge R. Brooke Jackson, but another candidate, Charlotte Sweeney was chosen instead. Wang was then nominated to replace Arguello.

Legal Experience

Wang began her legal career at the firm of Fried Frank Harris Shriver & Jacobsen before spending four years as a federal prosecutor, where, among other matters, Wang represented the government in immigration habeas petitions. See, e.g., De Maria Gonzalez-Portillo v. Reno, 2000 U.S. Dist. LEXIS 19537 (D. Colo. Dec. 6, 2000). From 2004 to 2015, Wang was at the Denver office of Faegre Drinker, where she worked on civil and intellectual property litigation. See, e.g., Pragmatus Telecom, LLC v. NETGEAR, Inc., 2013 U.S. Dist. LEXIS 68616 (N.D. Cal. May 13, 2013).

Jurisprudence

Wang has served as a federal magistrate judge since her appointment in 2015. In this role, she presides by consent over civil matters and misdemeanors, assists district judges with discovery and settlement, and writes reports and recommendations on legal issues. Among her cases that she presided over, Wang recommended that a Failure to Protect claim filed by a group of incarcerated plaintiffs against correctional officers not be dismissed, which was largely adopted by U.S. District Judge Philip Brimmer. See Leal v. Falk, 2021 U.S. Dist. LEXIS 60556 (D. Colo. Mar. 29, 2021). In a separate case, Judge Christine Arguello adopted Wang’s recommendation to dismiss civil rights claims against Erie County officials who the plaintiff claims defamed her and her boyfriend by claiming that he was a sex-offender. See Trujillo v. Wren, 2021 U.S. Dist. LEXIS 178342 (D. Colo. Sept. 20, 2021).

In another matter, Wang sanctioned plaintiff’s counsel in an antitrust lawsuit involving surgical bone mills, noting that they had failed to be forthright with the court. See Fink Densford, Lenox MacLaren Lawyers Draw Sanctions in Medtronic Anti-Trust Suit, MassDevice, Sept. 21, 2015. Wang also presided over a review of a settlement agreement for the release of the mentally ill who are incarcerated pending a return to competency. See Allison Sherry, Lawyers Seek Release of Mentally Ill From Colorado Jails, A.P. State & Local, Dec. 5, 2018.

Writings

As a law student, Wang authored a book review of Lucy Salyer’s Laws Harsh as Tigers, which discussed anti-Chinese racism and Chinese Exclusion Laws in the late 19th Century. See Nina Wang, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law. Lucy E. Salyer. Chapel Hill, N.C. & London: The University of North Carolina Press, 1995, 31 Harv. C.R.-C.L. L. Rev. 587 (Summer, 1996). Wang describes Salyer’s writing as “a vivid reminder of the insidious effects of racism. Id. at 598.

Political Activity

Wang has made a handful of political donations, including to former Gov. Bill Ritter, a Colorado Democrat. In 2008, Wang also donated $50 to a Committee opposing Amendment 46, a proposed constitutional amendment (which narrowly failed in the general election) that would have banned affirmative action in public employment, education, and contracting.

Overall Assessment

With two decades of experience both as a judge and a litigator, it is hard to question Wang’s qualifications for a federal judgeship. As such, Wang’s nomination is unlikely to attract the opposition of her colleague Sweeney, and is likely to be confirmed before Judge Arguello moves off the bench.

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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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Judge Ana de Alba – 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. In an effort to bring some relief, President Biden has nominated state judge Ana de Alba.

Background

A native Californian, de Alba received her B.A. from the University of California Berkeley in 2002 and her J.D. in 2007 from the UC Berkeley School of Law. While a law student, de Alba worked with elementary and middle school students on mock trials. See Minerva Perez, Pupils Convene Court, Los Banos Enterprise, Mar. 30, 2007 After law school, de Alba joined Lang Richet & Patch PC. She also continued her work with mock trial. Thaddeus Miller, Mock Trial Enlightens View of Future for Los Banos Sixth-Graders, Los Banos Enterprise, Mar. 16, 2012. In 2018, de Alba was appointed to the Fresno County Superior Court, where she currently serves.

History of the Seat

de Alba has been nominated to the U.S. District Court for the Eastern District of California, to a seat vacated on December 17, 2019 by Judge Morrison England. On May 21, 2020, the Trump Administration nominated attorney Dirk Paloutzian to replace England, but he was not confirmed before the end of the 116th Congress. de Alba was nominated on January 19, 2022.

Legal Experience

de Alba spent her entire career before becoming a judge at Lang Richet & Patch PC. Among her work there, de Alba represented a credit union in a suit by borrowers alleging promissory fraud that went up to the California Supreme Court. See Riverisland Cold Storage Inc. v. Fresno-Madera Product, 55 Cal. 4th 1169 (Cal. 2013). The California Supreme Court overruled a prior ruling limiting the use of “parol evidence” (evidence of verbal or written agreements outside the language of a contract) in cases of promissory fraud. See id. at 1172. Additionally, while at the firm, de Alba received the Jack Berman Award of Achievement from the California Young Lawyers’ Association in 2012 for her pro bono work, including serving on the Board of Directors for Central California Legal Services, Inc. California Lawyers, Judges to Receive Awards for Legal Service and Excellence, Targeted News Service, Oct. 4, 2012.

Jurisprudence

Since 2018, de Alba has served as a Superior Court judge in Fresno County. In this role, she presides over civil, criminal, and domestic cases. Among the matters she handled on the bench, de Alba presided over a suit by the American Chemistry Council alleging that California had improperly listed SPF systems using methylene diphenyl diisocynates (MDI) as priority products for the state’s green chemistry program, restricting their commercial use. See Judge Questions Core ACC Claim in Suit Over DTSC Spray Foam Listing, Inside Cal/EPA, Jan. 15, 2021. de Alba ordered the delisting of the challenged products, while rejecting three other challenges. Judge Scraps California DTSC’s Spray Polyeurethane Foam Listing, Inside Cal/EPA, Apr. 2, 2021. California’s appeal of the ruling is currently pending. California Urges Appellate Court to Uphold Green Chemistry Product Listing, Inside Cal/EPA, Feb. 4, 2022.

Additionally, during the COVID-19 pandemic, de Alba gained some news attention for her rulings relating to scheduling and court compliance. In one ruling, de Alba refused to extend or excuse deadlines for a defendant’s community service, noting that she had seen no evidence that the defendant had worked towards the service before the pandemic hit. See Jeannette Parada, COVID-19 or No COVID-19, Fresno Judge Wants Defendant’s Community Service Done – Or It’s Jail, The People’s Vanguard of Davis, June 29, 2020. In another case, de Alba withdrew bench warrants that had been issued for defendants who failed to appear, noting that they did not have access to steady housing or transportation, and allowed them to participate virtually. See Phoebe Glick, Coronavirus Court Precautions Can Lead to Unforeseen Complications, The People’s Vanguard of Davis, Aug. 7, 2020.

In other rulings, de Alba found probable cause that a defendant had committed an act of domestic violence based on the testimony of the reporting officer. See Angelina Caplanis, Defender Argues Victim Lied on 911 Call; Judge Still Finds Probable Cause for Arrest, The People’s Vanguard of Davis, July 15, 2020.

Overall Assessment

Despite her youth, de Alba has built a significant amount of experience on issues of criminal and civil law. It will be interesting to see if her rulings during the Covid-19 pandemic are questioned, either on the right or the left, during confirmation.

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Robert Huie – Nominee to the U.S. District Court for the Southern District of California

The U.S. District Court for the Southern District of California is currently short five judges. Having appointed two judges to the court already, the Biden Administration is slowly naming candidates for the remaining vacancies, including Jones Day partner Robert Huie.

Background

Robert S. Huie received his B.A. from Calvin University, a private evangelical university in Grand Rapids, Michigan, in 1998 and his J.D. from Yale Law School in 2002.

After law school, Huie spent a year at Wiggin Dana before clerking for Judge Jose Cabranes on the U.S. Court of Appeals for the Second Circuit. Huie then joined Latham & Watkins as a civil litigator.

In 2008, Huie became an Assistant United States Attorney based in San Diego. In 2020, he moved to become a Partner at Jones Day, where he currently serves.

History of the Seat

Huie has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on October 31, 2018, by Judge Michael Anello’s move to senior status. On November 21, 2019, President Trump nominated federal prosecutor Michelle Pettit to fill this vacancy. However, Pettit was not processed by the Senate Judiciary Committee before the end of the Trump Administration.

On January 19, 2022, President Biden nominated Huie to fill this seat.

Legal Experience

Throughout his career, Huie has worked both as a federal prosecutor and in private practice at a number of different law firms. In the latter capacity, Huie has worked as part of lawsuits related to insurance payouts from the September 11 terrorist attacks. See, e.g., S.R. Int’l Bus. Ins. Co. v. World Trade Ctr. Props. LLC., 467 F.3d 107 (2d Cir. 2006).

Notably, as a federal prosecutor, Huie was one of the leading prosecutors in the Fat Leonard scandal, in which 33 people were charged as part of a conspiracy to bribe U.S. Navy officials in exchange for classified intelligence. See Craig Whitlock, ‘Fat Leonard’ Probe Expands to Ensnare More than 60 Admirals, Wash. Post, Nov. 5, 2017. Huie’s work led to a number of guilty pleas, including of U.S. Navy Commander Jose Luis Sanchez. See Elliot Spagat, Navy Official is Highest Yet to Plead Guilty in Bribery Case, A.P. State & Local, Jan. 7, 2015. In other matters, Huie prosecuted Terry Lee Steward for threatening judges who presided over his medical malpractice case. Man Gets Time Served and Home Detention for Threatening to Kill Judges, City News Service, Feb. 28, 2011.

Overall Assessment

While the Biden Administration has generally sought out “unconventional” backgrounds in their judicial nominees, Huie, a former federal prosecutor and current biglaw partner, represents a brand of nominees that generally skated to confirmation in the past. While Huie may still draw some opposition, he is likely to be confirmed comfortably nonetheless.

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Natasha Merle – Nominee to the U.S. District Court for the Eastern District of New York

The Biden Administration has tapped attorneys from many prominent civil rights organizations for the bench. Eastern District nominee Natasha Merle, who works for the NAACP Legal Defense Fund, is part of this trend.

Background

Merle attended the University of Texas at Austin, graduating in 2005. Merle then attended New York University Law School, graduating in 2008. She then clerked for Judge Robert Carter on the U.S. District Court for the Southern District of New York before joining the Gulf Region Advocacy Center.

After two years at the Advocacy Center, Center became a federal public defender in the Eastern District of New York and then clerked for Judge John Gleeson on the U.S. District Court for the Eastern District of New York. She then joined the NAACP Legal Defense Fund, where she currently serves as deputy director of litigation.

History of the Seat

Merle has been nominated for a seat on the U.S. District Court for the Eastern District of New York. This seat opened on February 1, 2021 by statute because Judge Roslynn Mauskopf was designated to the Director of the Administrative Office of the United States Courts.

Legal Experience

Merle has held a number of legal positions throughout her career, although she has spent the majority of it at the NAACP Legal Defense Fund. Early in her career, Merle spent a year as a federal public defender, where she worked on appeals. See, e.g., People v. Rowser, 139 A.3d 489 (N.Y. App. Div. 2016).

Merle has been with the NAACP Legal Defense Fund since 2013. Notably, she was part of the legal team representing Duane Bell, a Texas man whose death sentence was overturned by the Supreme Court because of racially prejudiced comments presented by a defense expert during the sentencing phase of his trial. See Buck v. Davis, 137 S. Ct. 759 (2017). In a media statement, Merle noted that the case was about whether a state could execute someone after a sentencing infected with “racial bias.” Feliks Garcia, Supreme Court Slams Texas Man’s ‘Racially Tainted’ Death Sentence, Calls It “Indefensible”; The Jury’s Decision Hinged on Expert Witness Testimony That Claimed That Black People Were Statistically More Prone to Violent Criminal Behavior, The Independent, Oct. 5, 2016.

In additional matters, Merle was part of the legal team suing Alabama over its voter ID law, and argued the case before the Eleventh Circuit. Mallory Moensch, Civil Rights Groups Appeal Alabama Voter ID Ruling, A.P. State & Local, Feb. 22, 2018. See also Greater Birmingham Ministries v. Merrill, 250 F. Supp. 3d 1238 (N.D. Ala. 2017). She also brought suit against Arkansas for vote dilution of black voters in judicial elections. See Frazier v. Kelley, 460 F. Supp. 3d 799 (E.D. Ark. 2020).

In non-voting matters, Merle sued on behalf of black communities in Philadelphia over excessive force used during protests over police brutality in 2020. See Ellie Silverman and Mike Newall, Trump: May Send Officers to Phila.; It Was Among Cities He Named as He Lauded Use of Force Against Oregon Protesters. Kenney Said They Are Not Wanted Here, Philadelphia Daily News, July 21, 2020. She also sued the Alamance County Sheriff for allegedly using excessive force against protesters. See Isaac Groves, Second Lawsuit Charges Sheriff, Police with Suppressing Vote, Times-News, Nov. 9, 2020.

Statements and Writings

In her role at the NAACP LDF, Merle has frequently written and commented on the law, particularly in relation to pending litigation. For example, Merle noted, in connection with a lawsuit against President Trump’s Election Integrity Commission, that “[a]llegations of voter fraud have historically been used to target minority voters and deprive them full access to the franchise.” See Press Release, NAACP Legal Defense Fund, LDF, Local Alabama Organization File Federal Lawsuit Challenging President’s ‘Election Integrity’ Commission, Targeted News Service, July 18, 2017.

Additionally, Merle has also submitted letters to government officials, for example, sending a letter to the Texas Secretary of State asking for additional efforts to accommodate voting for those internally displaced by Hurricane Harvey. See Sam Levine, Civil Rights Group Threatens Texas If It Doesn’t Protect Voting Rights of Hurricane Victims, Huffington Post, Oct. 13, 2017.

Overall Assessment

Like many of her colleagues tapped for the bench and executive positions, Merle is likely to see strong opposition. Nonetheless, given Democrats’ relative discipline on judicial nominations, Merle is still favored to join the bench by the summer.

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Nusrat Choudhury – Nominee to the U.S. District Court for the Eastern District of New York

Nominated to the federal bench in January, Choudhury has already attracted attention for being the first female Muslim federal judicial nominee. Aside from the historic significance, Choudhury also makes a notable nominee for a significant paper trail of litigation and statements on hotly contested issues.

Background

Born in 1976 in a Bangladeshi American family, Choudhury earned a B.A. from Columbia University in 1998, an M.P.A. from Princeton in 2006 and a J.D. from Yale Law School in 2006. She then clerked for Judge Denise Cote on the U.S. District Court for the Southern District of New York and then for Judge Barrington Daniels Parker on the U.S. Court of Appeals for the Second Circuit.

After her clerkships, Choudhury joined the ACLU, staying with the organization until the present day. In her time there, Choudhury has transitioned through the National Security Project and the Racial Justice Program before her current role as Legal Director of the American Civil Liberties Union of Illinois.

History of the Seat

Choudhury has been nominated for a seat on the U.S. District Court for the Eastern District of New York. This seat opened when Joseph Bianco was elevated to the Second Circuit on May 17, 2019. On February 12, 2020, the Trump Administration nominated Saritha Komatireddy to fill this vacancy, but she never received a hearing before the Senate Judiciary Committee.

On September 1, 2021, Choudhury was recommended for a nomination by Senate Majority Leader Chuck Schumer to the White House. She was nominated on January 19, 2022.

Legal Experience

Choudhury has spent virtually her entire legal career at the American Civil Liberties Union in various capacities, and has had the opportunity to work on a number of prominent civil rights cases. We have summarized some of these matters below.

National Security Project

Early in her career at the ACLU, Choudhury worked primarily on national security cases. For example, she represented Amir Mohamed Meshal, who was detained in Ethiopia and allegedly interrogated by the FBI on allegations of supporting Islamic militants. Beth DeFalco, NJ Man Sues FBI over his Detention in Ethiopia, A.P., Nov. 10, 2009. Additionally and notably, Choudhury argued before the Ninth Circuit in a challenge to the Transportation Safety Administration’s No-Fly List. Nigel Duara, Federal Appeals Court in Ore. Takes Up No-Fly Case, A.P., May 11, 2012. The Ninth Circuit ultimately sided with Choudhury, allowing the suit to move forward. See Latif v. Holder, 686 F.3d 1122 (9th Cir. 2012).

Racial Justice Program

Choudhury also worked at the ACLU’s Racial Justice Program, where she worked on an agreement with the Boston Police Department to track racial profiling. Jess Bidgood, Boston Police Focus on Blacks in Disproportionate Numbers, Study Shows, N.Y. Times, Oct. 9, 2014. She also worked on an ACLU report that concluded that black drivers in Florida are stopped disproportionately by police. See Lizette Alvarez, Florida Said to Ticket More Blacks on Seatbelts, N.Y. Times, Jan. 28, 2016.

ACLU of Illinois

Since 2020, Choudhury has served as the Legal Director of the ACLU of Illinois. In this role, Choudhury has been supportive of Chicago Mayor Lori Lightfoot’s efforts to reform policing. See A.D. Quig, Lori’s Lieutenants Hitting the Exit; Brain Drain Threatens Push for Change in Policing, Crain’s Chicago Business, May 3, 2021.

Statements and Writings

In her role at the ACLU, Choudhury has spoken out frequently in speeches as well as media statements. For example, Choudhury has spoken out against the No-Fly List, arguing that the process of placing individuals on the list lacks transparency. See Chris Hawley, John Curran, Terror Suspects Seek to Clear Names, A.P., Mar. 21, 2011. Choudhury has also been critical of the privatization of parole and probation. See Tina Rosenberg, Out of Debtors’ Prison, With Law as the Key, N.Y. Times Blogs, Mar. 27, 2015. In another article, Choudhury has spoken on the “racial wealth gap” which can lead to fines and parking tickets having more severe consequences for minorities. See Paul Kiel, Debt and the Racial Wealth Gap, N.Y. Times, Jan. 3, 2016.

In an interview discussing her new role as the Legal Director of the ACLU of Illinois, Choudhury stated, in a quote that is likely to be frequently repeated: “Our job and my purpose in life is to make sure we use the law as a tool for social justice.” See A.D. Quig, The Takeway; Nusrat Jahan Choudhury, Crain’s Chicago Business, Mar. 23, 2020.

Furthermore, as a law clerk to Judge Cote, Choudhury authored an article that was critical of efforts by Western governments to “liberate” Muslim women by banning religious articles of clothing and headscarves, noting that this can infringe on religious freedom and the autonomy of the women in question, as well as another article discussing women’s rights in the Afghani Constitution. See Nusrat Choudhury, From the Stasi Commission to the European Court of Human Rights: L’Affaire du Foulard and the Challenge of Protecting the Rights of Muslim Girls, 16 Colum. J. Gender & L. 199 (2007); Nusrat Choudhury, Constrained Spaces for Islamic Feminism: Women’s Rights and the 2004 Constitution of Afghanistan, 19 Yale L.J. & Feminism 155 (2007).

Overall Assessment

Given her experience with civil rights law and her time at the ACLU, Choudhury’s nomination was already likely to attract strong opposition. However, her self-description as having a life purpose to effectuate social justice through the law is likely to be used to argue that Choudhury is an activist, rather than a jurist. In defense, Choudhury can cite the context of the quote, made in her role as an advocate, not as a judge, while critics may counter that it would be hard for Choudhury to set aside her “purpose in life” when she takes the bench. Ultimately, Choudhury’s nomination is likely to be hotly contested, potentially even coming down to the vote of Vice President Kamala Harris.

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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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Jennifer Rearden – Nominee to the U.S. District Court for the Southern District of New York

In 2020, upon the recommendation of Democratic Senator Kirsten Gillibrand, the Trump Administration nominated Jennifer Rearden to the U.S. District Court for the Southern District of New York.  Rearden was, however, not confirmed before the end of the Administration.  She now has a second chance after being renominated by Biden.

Background

50-year-old Jennifer Hutchison Rearden received her B.A. from Yale University in 1992 and a J.D. in 1996 from New York University School of Law.  After law school, Hutchison joined Davis Polk & Wardwell, before moving to the Atlanta office of King & Spalding.  Since 2003, Rearden has been a Partner with Gibson, Dunn & Crutcher in New York City.

History of the Seat

Rearden has been nominated to the vacancy on the U.S. District Court for the Southern District of New York vacated on October 25, 2018 by Judge Richard Sullivan’s elevation to the U.S. Court of Appeals for the Second Circuit.  Rearden was previously nominated for this vacancy by President Trump on February 12, 2020 but was not confirmed by the Senate. Rearden was renominated by Biden on January 19, 2022.

Political Activity

Rearden has been an active political donor, having made over thirty political contributions over the last thirteen years.[1]  While Rearden has given to politicians of both parties (her Republican donees include Rudolph Giuliani and Chris Christie), most of her donations have been to Democrats.[2]  She has contributed particularly to female Democratic senators and senate candidates, giving them almost $12000 in the 2016 cycle.[3]

Legal Career

Rearden has spent her entire career in private practice, working at various big law firms as a commercial litigator.  Specifically, Rearden has handled a number of complex commercial cases, including matters related to tax, contract, and compliance matters.[4]

Among her more prominent cases, Rearden represented Philip Morris Inc. and other tobacco companies in a suit against the City of New York challenging the City’s regulation of tobacco prices.[5]  She also represented Home Depot in an Arizona suit involving tax deductions.[6]

Notably, Rearden argued in New York State Court a suit seeking Worker’s Compensation benefits for an employee’s domestic partner (through a civil union).[7]  The Appellate Division of the New York Supreme Court found, in a divided opinion, that statutory provisions supporting worker’s compensation benefits for surviving spouses did not cover partners in a civil union.[8]

Rearden’s nomination has drawn criticism from Rep. Rashida Tlaib for her alleged role in the prosecution against Steven Donziger.[9]  Donziger, an environmental lawyer, had obtained a $9.5 billion judgment against Chevron for environmental damages in Ecuador, leading to Chevron pulling their assets from that country and suing Donziger in New York for racketeering.[10]  The latter suit eventually led to criminal contempt charges when Donziger refused to follow a court order to surrender his electronic devices, arguing that they contained confidential client information.[11]  While Tlaib’s statement, a tweet by Donziger, and the related article suggests that Rearden was among the Gibson attorneys who sued Donziger, a search of the case documents does not show Rearden’s name.  The key opinion instead identifies five other Gibson attorneys.  Additionally, there appears to be no evidence on the case’s PACER record of Rearden entering an appearance in the case.

Writings

Rearden has been a fairly prolific author, frequently writing articles on various legal issues, including issues of civil practice, procedure, and substantive law.

For example, Rearden has written on the Columbia Pictures v. Bunnell ruling in the Central District of California, which held that random access memory (RAM) could be discoverable material that needed to be preserved in preparation for litigation.[12]  She has similarly expounded on a similar decision by Judge Shira Scheindlin on production of metadata during discovery.[13] 

Overall Assessment

While Rearden was not confirmed under Trump, she has a strong chance under the current Administration.  While she is likely to draw the requisite opposition from the right that all Biden nominees are drawing, Rearden may also see some liberal opposition based on her time at Gibson Dunn and her perceived role in the Donziger prosecution.

[2] See id.

[3] Id.

[5] See Nat’l Ass’n of Tobacco Outlets v. City of New York, 27 F. Supp. 3d 415 (S.D.N.Y. 2014).

[6] Home Depot USA, Inc. v. Ariz. Dep’t of Rev., 230 Ariz. 498 (Ariz. Ct. App. Div. 1 2012).

[7] Matter of Langan v. State Farm Fire & Cas., 48 A.D.3d 76 (N.Y. Sup. App. Div. 2007).

[8] See id. at 78-79.

[9] Zack Budryk, Tlaib Blasts Biden Judicial Nominee Whose Firm Sued Environmental Lawyer, The Hill, Jan. 21, 2022, https://thehill.com/policy/defense/590819-tlaib-blasts-biden-judicial-nominee-whose-firm-sued-environmental-lawyer. 

[10] See id. 

[11] See id. 

[12] Jennifer H. Rearden and Farrah Pepper, Oh No, Ephemeral Data, N.Y. Law Journal, Mar. 22, 2010, https://www.gibsondunn.com/wp-content/uploads/documents/publications/Rearden-Pepper-OhNoEphemeralData.pdf.  

[13] Jennifer Rearden, Farrah Pepper, and Adam Jantzi, Scheindlin’s ‘Day Laborer’ Decision: Much Ado About Metadata, Law Technology News, Feb. 22, 2011, https://www.gibsondunn.com/wp-content/uploads/documents/publications/Rearden-%20Pepper-%20Scheindlin%27s-Day-Laborer%27-Decision-LTN-2-22-11.pdf.

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