Diane Gujarati – Nominee to the U.S. District Court for the Eastern District of New York

Diane Gujarati was the last judicial nominee that President Obama sent to the Senate during his Presidency, nominated on September 13, 2016.  Needless to say, Gujarati was not confirmed that year.  However, her renomination by President Trump is giving her a second chance at a lifetime appointment.

Background

Diane Gujarati was born on July 6, 1969, the daughter of Damodar Gujarati, a professor of economics at the U.S. Military Academy at West Point and an immigrant from India.[1]  Gujarati attended Barnard University, graduating summa cum laude in 1990. Gujarati then attended Yale Law School, graduating in 1995.  She then clerked for Judge John Walker on the U.S. Court of Appeals for the Second Circuit.

After her clerkships, Gujarati became an associate at Davis Polk & Wardwell LLP in New York City.  After three years there, Gujarati became an Assistant U.S. Attorney for the U.S. Attorney’s Office for the Southern District of New York.  She currently serves as Deputy Chief of the Criminal Division for the Office.

History of the Seat

Gujarati has been nominated for a seat on the U.S. District Court for the Eastern District of New York.  This seat has an impressive pedigree, having previously been held by two notable luminaries: Judge Jack Weinstein; and Judge John Gleeson.  Gleeson resigned the bench on March 9, 2016, opening this vacancy.  While the seat opened fairly late in the Obama Administration, Gujarati was nonetheless nominated on September 13, 2016.  Gujarati was never processed by the Republican Senate and was sent back to the White House in January 2017.

In June 2017, Gujarati’s name was broached by the White House to New York’s Democratic senators as part of a package of nominees.[2]  Gujarati was officially nominated on May 15, 2018.

Legal Experience

Other than her clerkship and a short stint at Davis Polk & Wardwell LLP, Gujarati has spent her legal career as a federal prosecutor in the Southern District of New York, working on criminal matters.  Early in her stint, Gujarati prosecuted security guard Ronald Ferry for lying to federal authorities about finding a pilot radio in the room of an Egyptian student shortly after the 9/11 attacks.[3]  Gujarati asked for a six month sentence, which the judge allowed Ferry to serve on weekends.[4]  The lenient sentence drew criticism from student in question, Abdallah Higazy, and the New York Daily News, which called it a “slap on the wrist.”[5]  Gujarati also helped prosecute N.Y. mob boss Louis Daidone, who had allegedly once stuffed a dead canary in the mouth of an informant he killed.[6]

As she gained seniority in the office, Gujarati served as Deputy Chief of the Appeals Unit of the Criminal Division from 2006 to 2008.  During that time, she supervised a series of appeals including a Confrontation Clause challenge brought by an alleged mob member,[7] and a timeliness challenge in a securities case.[8]  She then served as Chief of the White Plains Office from 2008 to 2012 and has served as Deputy Chief of the Criminal Division since then.

Overall Assessment

Generally speaking (although it’s not guaranteed), any nominee put forward by both Obama and Trump is likely to be considered a consensus nominee.  After all, if two Presidents with fairly different criteria for selecting judges can come to a consensus on a nominee’s fitness, it is unlikely that senators will disagree.  Setting that aside, Gujarati clearly has the requisite qualifications to be a district court judge.  Her history of both prosecuting and supervising prosecutors ensures that she has the legal and organizational abilities to handle a courtroom.

If confirmed, Gujarati would replace another former prosecutor who became one of the strongest voices on the judiciary for holding prosecutors accountable.[9]  It remains to be seen if Gujarati will continue Gleeson’s traditions of ensuring an even playing field between prosecutors and defendants in the courtroom.


[1] Weddings; Diane Gujarati, Charles Chesnut, N.Y. Times, Oct. 29, 2000.

[2] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[3] Robert Gearty, Jail Weekends for Guard in Pilot Radio Case, N.Y. Daily News, May 31, 2002.

[4] See id.

[5] See id.

[6] Dan Mangan, Gruesome Tale of Mob ‘Canary’ Killer, N.Y. Post, Jan. 13, 2004.

[7] United States v. Lombardozzi, 491 F.3d 61 (2d Cir. 2007).

[8] United States v. Rutkoske, 506 F.3d 170 (2d Cir. 2007).

[9] See, e.g., Colby Hamilton, The Gotti Antagonist Who Brought Down a Sentencing Regime, Politico, March 17, 2016, https://www.politico.com/states/new-york/city-hall/story/2016/03/the-gotti-antagonist-who-brought-down-a-sentencing-regime-032867.

Lewis Liman – Nominee to the U.S. District Court for the Southern District of New York.

The judicial nomination process often involves dealmaking, where nominations are logrolled together to satisfy different stakeholders.  A perfect example of this is with regard to the 8-nominee New York package put together by the White House in consultation with Democratic Senators Chuck Schumer and Kirsten Gillibrand.  As part of the package, the White House has nominated a candidate they wouldn’t otherwise consider: Lewis Liman.

Background

Lewis Jeffrey Liman was born in New York on December 3, 1960, the son of Arthur and Ellen Liman.  Liman’s father, Arthur L. Liman, was a famous lawyer in his own right, having led the Senate Iran-Contra Investigation.[1]  Liman grew up in New York City (on the Upper West Side) and then attended Harvard College and Yale Law School (with a stint at the London School of Economics in between).[2]

After graduating, Liman spent a year at the NAACP Legal Defense & Educational Fund.  He then clerked for Judge Pierre Leval on the U.S. Court of Appeals for the Second Circuit and then for Justice John Paul Stevens on the U.S. Supreme Court.[3]  At the Supreme Court, Liman clerked alongside an array of future legal luminaries including Judge Stephen Higginson, Judge Adalberto Jordan, Judge Randolph Moss, Judge Paul Engelmayer, Peter Keisler, Miguel Estrada, Richard Cordray, and Ronald Klain.

After his clerkships, Liman joined the New York office of Cravath Swaine & Moore LLP as an associate.  In 1994, Liman shifted to the U.S. Attorney’s Office for the Southern District of New York, working under Mary Jo White.  In 1999, Liman moved to Wilmer, Cutler & Pickering LLP as a Partner.  In 2003, Liman joined the New York office of Cleary Gottleib Steen & Hamilton LLP as a Partner.  He continues to serve there to this day.

History of the Seat

Liman has been tapped for a seat on the U.S. District Court for the Southern District of New York to a seat vacated by Judge Paul Crotty.  While Crotty moved to senior status on August 1, 2015, President Obama never made a nomination to fill the vacancy.  However, at the time, Liman was recommended for the vacancy to Schumer by his Screening Committee.[4]

In April 2017, Liman was interviewed by the Trump Administration for nomination to the Southern District of New York.  Liman’s name was then broached to Schumer and Gillibrand as a part of a package of nominees.[5]  Once approved, Liman began the nomination process in November 2017 and was nominated on May 15, 2018.

Political Activity

Liman has been an active political donor, having made nearly forty political contributions over the last twenty five years, all to Democrats or Democratic-aligned organizations.[6] Among his donations, Liman has given to Schumer, Gillibrand, Hillary Clinton, President Obama, and John Kerry.[7]

Legal Career

After working briefly for the NAACP Legal Defense & Educational Fund and clerking, Liman has spent the bulk of his career either as a federal prosecutor or in private practice.

Federal Prosecutor

Liman worked as an Assistant United States Attorney in the Southern District of New York between 1994 and 1999.  In that role, Liman handled a wide variety of cases including white collar crime, organized crime, drugs, and financial crime.[8]

Among his more prominent cases, Liman prosecuted Autumn Jackson for extorting money out of Bill Cosby through blackmail, claiming that Cosby was her father.[9]  Alongside fellow AUSA Paul Engelmayer,[10] Liman led the trial examination and secured a guilty verdict.[11]  Notably, Liman’s father passed away during the trial, forcing a recess.[12]

Among other cases he handled, Liman prosecuted a junior analyst at J.P. Morgan for insider trading,[13] secured convictions against four members of the Cali drug cartel for smuggling approximately three thousand pounds of cocaine,[14] and prosecuted a tax accountant for preparing false tax returns on behalf of dozens of clients to help them evade taxes.[15]

Private Practice

Liman has spent most of his career in private practice, working at Cravath Swaine & Moore LLP from 1990 to 1994, at Wilmer, Cutler & Pickering LLP from 1999 to 2003, and at Cleary Gottleib Steen & Hamilton LLP since 2003.  In each of these positions, Liman’s practice focused on litigation.  In his first position at Cravath, for example, Liman focused on Antitrust litigation, including representing Time Warner Corporation.[16]

During his time at Wilmer, Liman focused on representing corporations in securities actions and white collar cases.  However, he also represented a coalition of religious groups arguing that a construction company responsible for a fire that almost destroyed the Central Synagogue should not be allowed to reduce their damages by the amount of charitable donations the organization took in.[17]  Liman also represented, upon court appointment, a New York prisoner seeking release after his conviction for burglary, successfully securing the prisoner’s release.[18]

While at Wilmer, Liman represented Tyco International executive Dennis Kozlowski.  During the investigation, emails from Liman were uncovered, which disclosed his knowledge of personal use of corporate funds by executives.[19]  The emails raised concerns as to whether Liman should have disclosed the violations to federal regulators.[20]

Since 2003, Liman has worked as a Partner at Cleary Gottleib Steen & Hamilton LLP, focusing on securities litigation and white collar crime cases.  For example, Liman represented Bank of America in defending against a securities fraud action brought by the Securities and Exchange Commission.[21]

While at Cleary, Liman argued his first and only case at the U.S. Supreme Court, representing a fund manager facing securities fraud allegations brought by the SEC.[22]  Liman was able to convince the Supreme Court that the actions brought against his client were untimely due to the five year gap between the SEC discovering the allegations and bringing suit.[23]

Writings

Liman has been a fairly prolific author, beginning his career by co-authoring a book with his mother while he was still a teenager.[24]  Liman has been particularly prolific on sentencing issues, exploring the weight and efficacy of the Sentencing Guidelines.[25]

In 1991, Liman authored a Letter to the Editor for the New York Times, discussing footnotes in Supreme Court decisions and its impact on “judicial restraint.”[26]  In the letter, written in response to a recent article,[27]  Liman argues that there is no correlation between the extensive use of footnotes in Supreme Court opinions and the lack of “judicial restraint,” noting:

“Judicial restraint is not equivalent to conservative judicial result, but is characterized by a reluctance to adopt rules broader than necessary to resolve a dispute and a willingness to listen to other voices in making a decision.”[28]

Overall Assessment

Let’s get the obvious out of the way: Liman is a Democrat and a more liberal candidate than most Trump will put forward.  However, it is far from uncommon for Presidents to nominate judges of the opposing party to the bench.  As such, with both the Trump Administration and New York Democrats behind his candidacy, Liman is likely to sail through the confirmation process.

Interestingly, if Liman faces opposition, it will likely come from Republican senators who consider his record to be too “liberal.”  Nevertheless, his strong academic credentials and extensive legal experience should be sufficient to ensure a bipartisan confirmation.


[1] Lois Smith Brady, Weddings: Vows; Lisa Cohen and Lewis Liman, N.Y. Times, Jan. 24, 1999.

[2] Sen. Comm. on the Judiciary, 115th Cong., Lewis Liman: Questionnaire for Judicial Nominees 1.

[3] See id. at 2.

[4] Id. at 49.

[5] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[6] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=lewis+liman&order=desc&sort=D (last visited July 31, 2018).

[7] See id.

[8] See Liman, supra n. 2 at 26.

[9] Greg B. Smith, Cos to Take the Stand in Extort Case, N.Y. Daily News, June 27, 1997.

[10] Engelmayer himself now serves on the SDNY bench, having been appointed by President Obama in 2011.

[11] Greg B. Smith, Autumn to Take a Big Fall, She’s Convicted of Cosby Extort, N.Y. Daily News, July 26, 1997.

[12] See Agent Ties Woman to Cosby Scheme, USA Today, July 18, 1997.

[13] Benjamin Weiser, An Insider Trading Charge at J.P. Morgan, N.Y. Times, Sept. 13, 1997.

[14] United States v. Garcia, 94 Cr. 78 (JES) (S.D.N.Y.).

[15] United States v. Abrams, 95 Cr. 285 (JES) (S.D.N.Y.), aff’d, 137 F.3d 704 (2d Cir. 1998).

[16] See Liman, supra n. 2 at 27.

[17] See Diana B. Henriques and Leslie Eaton, Once and Future Issue: Subtracting Donations from Damage Awards, N.Y. Times, Nov. 18, 2001.

[18] Stewart v. Strack, 99 Cv. 6400 (ERK) (E.D.N.Y.).

[19] Laurie P. Cohen and Mark Maremont, E-mails

[20] See id.

[21] In re Bank of America Secs. Litig., 09 MDL 2058 (PKC) (S.D.N.Y.).

[22] SEC v. Gabelli, 653 F.3d 49 (2d Cir. 2011), rev’d, 568 U.S. 442 (2013).

[23] See id.

[24] Ellen Liman and Lewis Liman, The Collecting Book (1980).

[25] See, e.g., Lewis J. Liman, Sentencing; ‘Extreme Vulnerability’ Revisited, New York Law Jounal, Mar. 7, 2003; Lewis J. Liman, Should Interdistrict Disparity be a Permissible Basis for Departure, 12 Fed. Sent’g Rep. 154 (1999); Lewis J. Liman, The Constitutional Infirmities of the United States Sentencing Commission, Yale L.J. 1363, 1987.

[26] Lewis Liman, High Court Wields a Powerful Footnote, N.Y. Times, Jan. 18, 1991.

[27] Id.

[28] Id.

Kenneth Bell – Nominee to the U.S. District Court for the Western District of North Carolina

Jonas Federal Building (site of the W.D.N.C. Courthouse in Charlotte).

A former Republican candidate for Congress, Ken Bell is Trump’s first nominee for the Western District of North Carolina.  Setting aside Bell’s political history, he is likely to face questions about his support for prosecuting Hillary Clinton in 2016.

Background

Kenneth Davis “Ken” Bell was born in Bedford, OH in 1958.[1]  Bell attended Wake Forest University and Wake Forest University School of Law.  He then joined the U.S. Attorney’s Office for the Western District of North Carolina as an Assistant U.S. Attorney.  He stayed in the office for the next 20 years, except for a 2-year hiatus at Womble Carlyle Sandridge & Rice in Winston-Salem.[2]

In 2003, Bell joined the Charlotte office of Mayer Brown as a Partner.  Three years later, Bell shifted to the Charlotte office of Hunton & Williams.[3]  In 2009, Bell moved again to McGuireWoods LLP in Charlotte, where he continues to work as a Partner.[4]

History of the Seat

Bell has been nominated for the U.S. District Court for the Western District of North Carolina.  This seat opened on August 31, 2017, when Judge Richard Voorhees moved to senior status.  Around the time the vacancy opened, Bell reached out to Sens. Richard Burr and Thom Tillis (R-NC) to interview for the seat.[5]

In November 2017, Bell was recommended to the White House for the vacancy.[6]  On April 12, 2018, Bell was officially nominated for the seat.

Legal Experience

Bell has practiced law for approximately thirty-five years, with that time evenly split between working as a federal prosecutor and in private practice.

Federal Prosecutor

Bell has two stints as a federal prosecutor in the U.S. Attorney’s Office for the Western District of North Carolina, from 1983 to 1988 and from 1990 to 2003.  While Bell has handled many cases as a federal prosecutor, he is perhaps most famous for his prosecution of a Hezbollah cell operating in Charlotte.  His prosecution produced the first trial conviction ever secured under the Material Support statute.  The cell consisted of individuals who would buy cigarettes in North Carolina and resell them illegally in Michigan, passing on to the profits to Hezbollah.[7]  In addition to securing the first trial convictions under the Material Support statute, Bell also secured the first trial convictions for a terrorist cell under the RICO statute.[8]  Bell’s work on the prosecution resulted in him being awarded the Attorney General’s John Marshall Award for Trial of Litigation.[9]

Among other matters, Bell prosecuted drug crimes,[10] voting fraud,[11] counterfeiting,[12] and civil rights violations.[13]

Private Practice

Bell has been in private practice since 2003, shifting between the firms of Mayer Brown, Hunton & Williams, and McGuire Woods in Charlotte.  In each of these positions, Bell worked primarily on defending individuals and corporations charged with white collar crimes.[14]

Notably, Bell was the chief defense counsel to James Black, the Speaker of the North Carolina House of Representatives, who faced federal charges of corruption.[15]  Black was charged, among other counts, with bribing Republican Rep. Michael Decker to switch parties in 2003, allowing Black to remain Speaker despite a narrow Republican majority.  As Black’s defense counsel, Bell negotiated a plea to one charge of receiving illegal gratuities.[16]  More recently, Bell also represented Rep. Robert Pittenger (R-NC) against corruption charges.[17]

Since 2012, Bell has served as a Receiver over the assets of the Rex Venture Group (also known as ZeekRewards), a Ponzi scheme whose closing created over $800 million in losses.[18]  As Receiver, Bell has filed suits against insiders and net winners from the scheme, seeking to recover the contributions put in by those who were defrauded.[19]

Political Activity

In the 1990 election cycle, Bell ran as a Republican for North Carolina’s 5th Congressional District against Democratic Incumbent Stephen Neal.  Bell won the primary against fellow Republican Steve Royal with 51% of the vote.[20]  During the campaign, Bell attacked Neal for his efforts in Congress on behalf of the Savings & Loan Industries.[21]  However, Bell in turn was attacked by Democrats for using $2500 in campaign funds to make mortgage and car payments.[22]  Rep. Beryl Anthony (D-Ark.), the then-Chairman of the Democratic Congressional Campaign Committee (DCCC) called the use of campaign funds “just plain wrong.”[23]  Bell and other Republicans engaged in the practice defended their actions, arguing that the use of campaign funds for personal expenses was legal and helped level the playing field against powerful incumbents.[24][25]  Ultimately, Bell took 41% of the vote in the ultimate election.[26]

Bell has been a frequent donor to Republicans, having given over $10000 over the last twelve years.[27]  Bell has given particularly generously to Burr, who has received over $4000.[28]  Others Bell has donated to include former Rep. Sue Myrick, Sen. Marco Rubio, and presidential candidate Mitt Romney.[29]

Writings

Throughout his legal career, Bell has written and spoken frequently on legal and public policy issues.   Of the many topics that Bell has written on, two are particularly notable.

First, Bell has repeatedly argued for the prosecution of Hillary Clinton for her use of unsecured email servers during her service as Secretary of State.  In a 2015 letter to the editor, Bell argued that Clinton’s use of the email servers violated the law, noting:

“If I had done what Ms. Clinton has done, I would have been prosecuted, and I would have been guilty.”[30]

After then-FBI Director James Comey announced his determination that Clinton had not broken any laws and that no “reasonable prosecutor” would indict her, Bell authored a second article, stating that he could find “an army of reasonable prosecutors” who would have indicted.[31]  In the second article, Bell argues that Clinton’s actions might suggest “disloyalty to the United States,” that Comey “got out of his lane” by recommending no prosecution, and that Attorney General Loretta Lynch was being unreasonable in not bringing charges.[32]

Bell’s article prompted a response from fellow Charlotte attorney David Tinkler, who noted that Clinton had used a secure server to transmit all information that was marked “classified” and that her behavior was no different than that of previous Republican Secretaries of State.[33]

Second, Bell was a strong advocate for the confirmation of Judge Robert Conrad to the U.S. Court of Appeals for the Fourth Circuit.[34]  Conrad was nominated by President George W. Bush in 2007 and blocked by the Democratic Senate due to concerns about his conservative ideology and previous comments opposing Planned Parenthood.[35]  In an interview, Bell described the blockade on Conrad as “embarrassing and outrageous” and urged Democrats to allow a hearing on Conrad.[36]

Overall Assessment

Like his fellow North Carolina nominee Thomas Farr, Bell is likely to face a rocky confirmation process.  In Bell’s case, the trouble is likely to come from his writings, rather than his legal activities.

Bell is likely to face significant pushback over his view that Hillary Clinton should have been charged criminally for her use of personal email servers, a view rejected by legal observers in both parties (albeit embraced by some mainstream voices).  Democrats are unlikely to support a candidate who urged criminal charges against their last presidential nominee.  Additionally, some critics may charge Bell with hypocrisy, noting his use of campaign funds for personal expenses in his 1990 election (conduct that may have been legal at the time, but has more recently been firmly prohibited by the Federal Election Commission).[37]

Additionally, Bell’s strong endorsement of Conrad, a judge himself criticized for his strong statements against Planned Parenthood and the pro-choice movement,[38] is unlikely to endear Bell to Senate Democrats.

In his favor, Bell’s credentials for the bench are unquestionable given his extensive legal experience.  Furthermore, Bell can point to his representation of prominent Democrats such as Black to reinforce his bipartisan credentials.

As a bottom line, Bell is likely to face strong opposition from Senate Democrats.  However, if he can secure the support of all Senate Republicans, he will still be confirmed.  As such, barring another shoe dropping, Bell remains the favorite for confirmation.


[1] Sen. Comm. on the Judiciary, 115th Cong., Kenneth D. Bell: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] See id.

[4] See id.

[5] See Bell, supra n. 1 at 56.

[6] See id.

[7] See Jeffrey Goldberg, In the Party of God, New Yorker, Oct. 28, 2002, https://www.newyorker.com/magazine/2002/10/28/in-the-party-of-god-2.  

[8] See United States v. Hammoud, et al., CR-00-147-MU (W.D.N.C.).

[9] See Bell, supra n. 1 at 45.

[10] See, e.g., United States v. McChan, 101 F.3d 1027 (4th Cir. 1996); United States v. McManus, 23 F.3d 878 (4th Cir. 1994).

[11] See, e.g., United States v. Odom, 736 F.2d 104 (4th Cir. 1984).

[12] See, e.g., United States v. Ross, 844 F.2d 187 (4th Cir. 1988).

[13] See, e.g., United States v. Rathburn, 1:99-cr-00091-LHT (W.D.N.C.).

[14] See Bell, supra n. 1 at 28.

[15] United States v. Black, 5:07-cr-00042-BO (E.D.N.C.).

[16] See id.

[17] Tim Funk, Rep. Robert Pittenger, Challenger Mark Harris Target Character in New Ads, Charlotte Observer, May 23, 2016, https://www.charlotteobserver.com/news/politics-government/article79385082.html.  

[18] Securities and Exchange Comm’n v. Rex Venture LLC d/b/a ZeekRewards.com, and Paul Burks, 3:12-CV-519 (W.D.N.C.).

[19] McGuire Woods: Court-Appointed Receiver in ZeekRewards Case Sues Insiders, Net Winners of the Scheme, India Investment News, Mar. 3, 2014.

[20] See Our Campaigns, https://www.ourcampaigns.com/RaceDetail.html?RaceID=187113 (last visited July 29, 2018).

[21] Nathaniel C. Cash, How Old Votes Become New Political Liabilities, Wash. Post, Aug. 24, 1990.

[22] See Miles Benson, Run for Congress Can Pay Mortgage, Seattle Times, Aug. 26, 1990, http://community.seattletimes.nwsource.com/archive/?date=19900826&slug=1089789.  

[23] Charles R. Babcock, Personal Use of Campaign Funds Sparks Dispute; Challengers Say System Allows the Practice, Improving their Chances Against Incumbents, Wash. Post, Aug. 3, 1990.

[24] See id.

[25] Coincidentally, another challenger attacked for the personal use of campaign funds was an Indiana candidate named Mike Pence.  See Benson, supra n. 29.

[26] See Our Campaigns, https://www.ourcampaigns.com/RaceDetail.html?RaceID=34410 (last visited July 29, 2018).

[28] See id.

[29] See id.

[30] Kenneth D. Bell, Letter to the Editor, Clinton Offers Up A Meaningless Dodge, Charlotte Observer, Sept. 2, 2015, https://www.charlotteobserver.com/opinion/letters-to-the-editor/article33225267.html.  

[31] Kenneth D. Bell, A ‘Reasonable’ Case for Charging Hillary Clinton, Charlotte Observer, July 9, 2016, https://www.charlotteobserver.com/opinion/op-ed/article88564422.html.  

[32] See id.

[33] David Tinkler, Why the FBI Made the Right Choice on Hillary Clinton Probe, Charlotte Observer, July 14, 2016, https://www.charlotteobserver.com/opinion/op-ed/article89697407.html.

[34] Lisa Zagaroli, Conrad at Center of Partisan Fight, Charlotte Observer, July 22, 2008, https://www.charlotteobserver.com/news/local/article8994503.html.  

[35] See id.

[36] Guy Loranger, Court’s Open Seats Raise Concern in NC, North Carolina Lawyers Weekly, Aug. 4, 2008.

[37] Federal Election Commission, Personal Use, https://www.fec.gov/help-candidates-and-committees/making-disbursements/personal-use/ (last visited July 29, 2018) (“The campaign may not pay for mortgage, rent or utilities for the personal residence of the candidate or the candidate’s family even if part of the residence is being used by the campaign”).

[38] See Zagaroli, supra n. 34.

Judge Mary Kay Vyskocil – Nominee for the U.S. District Court for the Southern District of New York

Compared to federal magistrate judges, it is more uncommon for federal bankruptcy judges to elevated to an Article III appointment.  The Trump Administration, however, has already nominated two bankruptcy judges for elevation, including Judge Mary Kay Vyskocil, nominated for one of the prestigious courts in the country.

Background

A native New Yorker, Vyskocil was born in the city in 1958.  She received her B.A. summa cum laude from Dominican College of Blauvelt and then her J.D. from St. John’s University of Law.[1]

After graduation, Vyskocil joined Simpson Thacher & Bartlett LLP as an Associate.[2]  In 1990, she became a Partner at the firm.[3]  She stayed with the firm until 2016 when she was selected as a U.S. Bankruptcy Judge.[4]  Vyskocil currently serves in that capacity.

In 2014, when Judge Robert Smith on the New York Court of Appeals was set to retire, Vyskocil applied for the vacancy and was selected as one of seven finalists.[5]  Gov. Andrew Cuomo ultimately did not select Vyskocil, appointing Judge Eugene Fahey instead.  Vyskocil applied and was selected as a finalist again in 2017 when Judge Sheila Abdus-Salaam passed away, but Judge Paul Feinman was selected for the vacancy instead.[6]

History of the Seat

Vyskocil has been nominated for a seat on the U.S. District Court for the Southern District of New York.  This seat opened on March 1, 2017, when Judge Loretta Preska moved to senior status.

In April 2017, Vyskocil was contacted by the White House to gauge her interest in a federal judgeship.[7]  After interviewing with the White House, Vyskocil’s name was broached to New York Senators Chuck Schumer and Kirsten Gillibrand.[8]  Vyskocil was officially nominated on May 15, 2018.

Legal Career

Before she ascended to the federal bench, Vyskocil spent 33 years at Simpson Thacher & Bartlett LLP in New York City.  At the firm, Vyskocil primarily handled a civil litigation docket, focusing on commercial tort and contract cases.[9]  Over the course of her time at the firm, Vyskocil has tried fifteen cases and has participated in briefing two cases at the U.S. Supreme Court.[10]

Among her trials, Vyskocil represented Swiss Re Group and affiliated insurance companies in a declaratory judgment action related to insurance payouts for the destruction of the World Trade Center on 9/11.[11]  In the case, which required a three month long trial, Vyskocil secured a ruling that the insurance policies created liability for $3.5 Billion as the attacks constituted one “occurence” (the lessees requested $7 Billion in payouts).[12]

Jurisprudence

Vyskocil has served as a U.S. Bankruptcy judge in New York since her appointment in 2016.  As a Bankruptcy Judge, Vyskocil supervises bankruptcy matters, and has handled over 1000 cases since her appointment.[13]  Among the cases she has handled, Vyskocil presided over the bankruptcies of an organization providing educational opportunities to students in China,[14] construction companies involved in the World Trade Center rebuilding,[15] and a retailer of organic juice cleanses.[16]

Impressively, none of the decisions Vyskocil has made in her two years on the bench has been reversed by a higher court.[17]

Political Activity

Vyskocil, a former member of the Federalist Society for Law and Public Policy Studies, has donated exclusively to Republican candidates, including former Sen. Al D’Amato, former Pres. George W. Bush, former Rep. Rick Lazio, and Sen. John McCain.[18]

Writings

Throughout her career, Vyskocil has been extremely prolific as both an author and a speaker.  In conjunction with her former law partner Barry Ostrager, Vyskocil has authored a number of handbooks on insurance and commercial law including Occurrence Policy Coverage for Tort Claims, Crisis Management – Commercial Litigation in New York State Courts, and Modern Reinsurance Law & Practice.[19]

Vyskocil has also authored a number of articles discussing developments in the law.  In one article, Vyskocil, along with the other members of the Committee on Federal Courts for the New York City Bar, recommended that rules of privilege should not be codified for use in federal court, arguing that the common law approach to privilege permits more flexibility and adaptability.[20]

Overall Assessment

Looking at her overall record, it  is hard to dispute Vyskocil’s qualifications for the federal bench.  With 33 years of federal practice, a solid and uncontroversial tenure on the bench, and a strong academic writing background, Vyskocil will likely be seen as a consensus nominee.  The fact that she has Schumer and Gillibrand in her corner won’t hurt either.

Given these factors, Vyskocil should sail to confirmation, much like the others in the New York package of nominees.


[1] Sen. Comm. on the Judiciary, 115th Cong., Mary Kay Vyskocil: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] Id.

[4] Id.

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

[6] Christine Stuart, Seven Make Short List for Open Seat on NY’s High Court, Courthouse News Service, June 2, 2017, https://www.courthousenews.com/seven-make-short-list-open-seat-nys-highest-court/.  

[7] Vyskocil, supra n. 1 at 35.

[8] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[9] See Vyskocil, supra n. 1 at 71.

[10] See id.

[11] See S.R. Int’l Bus. Ins. Co. v. World Trade Center Props. LLC, 467 F.3d 107 (2d Cir. 2006).

[12] See id.

[13] See Vyskocil, supra n. 1 at 46.

[14] See In re ChinaCast Educ. Corp., No. 16-13121 (Bankr. S.D.N.Y. filed Nov. 9, 2016).

[15] See In re Collavino Constr. Co., Case Nos. 14-12908 & 15-10344 (Banr. S.D.N.Y. filed Oct. 17, 2014) (Jointly Administered).

[16] See In re Organic Ave. LLC, Case No. 15-12787 (Bankr. S.D.N.Y. filed Oct. 15, 2015).

[17] See Vyskocil, supra n. 1 at 67-68.

[19] See Vyskocil, supra n. 1 at 11-13.

[20] The Committee on Federal Courts, Revisiting the Codification of Privileges Under the Federal Rules of Evidence, 55 The Record 148, Jan/Feb 2000.

Eric Komitee – Nominee for the U.S. District Court for the Eastern District of New York

Eric Komitee who recently left a very lucrative position as General Counsel,[1]  is Trump’s newest nominee to the Brooklyn based Eastern District.

Background

Eric Ross Komitee was born in Freeport, New York on December 21, 1970.  Komitee received a B.A. with High Honors from Emory University in 1992 and a J.D. cum laude from New York University School of Law in 1995.[2]  Komitee then clerked for Judge J.L. Edmondson on the U.S. Court of Appeals for the Eleventh Circuit.[3]

After his clerkship, Komitee joined the New York office of Cravath Swaine & Moore as an Associate.[4]  In 1998, he moved to Skadden, Arps, Slate, Meagher & Flom LLP.  In 2000, he shifted again, joining the U.S. Attorney’s Office for the Eastern District of New York as a federal prosecutor.[5]

In 2008, Komitee left the U.S. Attorney’s Office to join Viking Global Investors LP, a New York based hedge fund, as General Counsel.[6]  Komitee left the fund in June 2018.

History of the Seat

Komitee has been nominated for a seat on the U.S. District Court for the Eastern District of New York.  This seat opened on February 28, 2017, when Judge Eric Vitaliano moved to senior status.  In early February 2017, Komitee submitted a resume to the White House for the vacancy.[7]

In July 2017, Komitee’s name was broached by the White House as part of a package of nominees to New York Sens. Chuck Schumer and Kirsten Gillibrand.[8]  Komitee interviewed with Schumer in November 2017, and was officially nominated on May 15, 2018.

Legal Experience

Komitee started his legal career in the New York offices of big firms Cravath and Skadden.  At Cravath, Komitee focused primarily on mergers and acquisitions and other forms of corporate law, while at Skadden, Komitee focused largely on representing corporations in criminal and SEC investigations.[9]  Additionally, at Skadden, Komitee sued a local sheet metal union to secure back pay for workers suffering from racial discrimination.[10]

From 2000 to 2008, Komitee worked as an Assistant U.S. Attorney in the Eastern District of New York, focusing on prosecuting white collar and corporate crime.[11]  Komitee has also prosecuted a number of organized crime cases, including fighting scams linked to the Gambino crime family.[12]  Komitee also prosecuted the largest consumer fraud case ever brought by the Federal Trade Commission (as of 2006), related to a widespread telecommunications fraud.[13]

From 2008 to 2018, Komitee worked as General Counsel to Viking Global Investors LP, focusing on transactional and compliance work.  Komitee also handled contract and employment related matters for the hedge fund.

Political Activity

Komitee has a relatively limited political history, having made five donations over the past few years, all to Republicans.[14]  The recipients of Komitee’s donations are Rep. Trey Gowdy, former Sen. Scott Brown, Gov. Mitt Romney (during his 2012 Presidential campaign), Sen. Marco Rubio, and the National Republican Congressional Committee.[15]

Writings

As a law student, Komitee authored an article discussing the influence of dismissed charges on sentencing under the U.S. Sentencing Guidelines.[16]  In the article, Komitee argues that judges should not be permitted to depart upwards in a defendant’s sentence based on charges ultimately dismissed as a part of plea bargains.[17]  Komitee notes that allowing such upward departures would remove the incentive for defendants to plea-bargain and as such, “would have grave consequences for the ability of the criminal justice system to process cases and reach equitable results.”[18]

Overall Assessment

As he has already been pre-approved by Schumer and Gillibrand, it is unlikely that Komitee will face too much trouble through the confirmation process.  His record is fairly noncontroversial, and he has not written or spoken on any controversial issues.  As such, it is more a question of when, rather than if, Komitee will be confirmed.


[1] See C. Ryan Barber, Eric Komitee, Trump Pick for NY Court, Made Millions as Hedge Fund GC, Corporate Counsel, July 11, 2018, https://www.law.com/corpcounsel/2018/07/11/eric-komitee-trump-pick-for-ny-court-made-millions-as-hedge-fund-gc//.

[2] Sen. Comm. on the Judiciary, 115th Cong., Eric R. Komitee: Questionnaire for Judicial Nominees 1.

[3] See id. at 2.

[4] See id.

[5] Id.

[6] See Barber, supra n. 1

[7] See Komitee, supra n. 2 at 28.

[8] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[9] See Komitee, supra n. 2 at 16.

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

[11] See Komitee, supra n. 2 at 15.

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

[13] United States v. LoCascio, No. 1:03-cr-00304-CBA (E.D.N.Y.), aff’d, 185 F. App’x 88 (2d Cir. 2006).

[15] See id.

[16] See Eric R. Komitee, Bargains Without Benefits: Do the Sentencing Guidelines Permit Upward Depatures to Redress the Dismissal of Charges Pursuant to Plea Bargains?, 70 N.Y.U. L. Rev. 166 (April 1995).

[17] Id. at 194-95.

[18] See id. at 195.

Rachel Kovner – Nominee for the U.S. District Court for the Eastern District of New York

Despite being only 38 years old, Rachel Kovner is an extremely accomplished advocate.  A former Supreme Court clerk, Kovner currently represents the U.S. Government in the Solicitor General’s Office and has argued 11 cases before the U.S. Supreme Court.  This record along with the support of New York Senators Chuck Schumer & Kirsten Gillibrand makes Kovner a fairly noncontroversial nominee as well as a likely candidate for elevation to the Second Circuit and, potentially, the Supreme Court.

Background

Rachel Peter Kovner was born in New York on September 29, 1979.  Kovner attended Harvard University, graduating summa cum laude in 2001.[1]  While at Harvard, Kovner was an editor for the Harvard Crimson.[2]  After graduating, Kovner was hired by the New York Sun (her father Bruce Kovner was one of the paper’s investors) as a reporter.[3]

In 2003, Kovner joined Stanford Law School, graduating in 2006. She then clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit, and then for Justice Antonin Scalia on the U.S. Supreme Court.[4]

After her clerkships, Kovner was hired by incoming U.S. Attorney Preet Bharara to be a federal prosecutor in the Southern District of New York.[5]  After four years there, Kovner became Assistant to the Solicitor General in the U.S. Solicitor General’s Office.  Kovner currently practices there.

History of the Seat

Kovner has been nominated for a seat on the U.S. District Court for the Eastern District of New York.  This seat opened on November 30, 2016, when Judge Carol Amon moved to senior status.  As the seat opened after the 2016 Presidential election, no nomination was made for the seat by President Obama.

Kovner received a call from the White House to gauge her interest in a federal judgeship in March 2017.[6]  After she confirmed her interest and interviewed with the White House, Kovner’s name was broached by the White House as part of a package of nominees.[7]  Kovner interviewed with Schumer in April 2018, and was approved.  Kovner was officially nominated on May 15, 2018.

Legal Experience

Kovner started her legal career by clerking for two of the most influential conservatives on the federal judiciary, Judge J. Harvie Wilkinson and Justice Antonin Scalia.  After those clerkships, Kovner joined the U.S. Attorney’s Office for the Southern District of New York, one of the most prestigious stations for a prosecutor.  At the office, Kovner started in the general crimes unit, and then moved to narcotics and finally the terrorism and international narcotics trafficking unit.[8]

At the U.S. Attorney’s Office, Kovner notably helped in prosecuting Khaled Al Fawwaz and Adel Abdel Bary for their role in the al Qaeda conspiracy to bomb the U.S. Embassies in Kenya and Tanzania.[9]  Kovner also helped try and secure a 63 month sentence for a tax preparer who assisted in preparing fraudulent tax returns.[10]

Since 2013, Kovner has worked as Assistant to the Solicitor General.  Having worked in the Solicitor General’s Office in both the Obama and Trump Administrations, Kovner has worked under four Solicitors General: Democrats Don Verrilli and Ian Gershengorn; and Republicans Jeff Wall and Noel Francisco.  Over her tenure, Kovner has argued the following eleven cases before the U.S. Supreme Court:

Prado Navarette v. California[11] – This was a Fourth Amendment challenge to the stop of a vehicle suspected of having an impaired driver.  The driver challenged the stop, which was based on an anonymous tip, as failing to meet the standard of reasonable suspicion of a crime as the officer had not witnessed any wrongdoing.  Kovner argued in support of California’s position that officers need not witness wrongdoing in order to meet the reasonable suspicion standard.  The Supreme Court ruled 5-4 that officers are not required to independently corroborate tips about illegal activity before pulling over a motorist.

Heien v. North Carolina[12] – In this case, a North Carolina sheriff pulled over a motorist for a broken tail light and found cocaine in the vehicle.  However, it was later discovered that a single broken tail light was not against the law in North Carolina, and that, as such, the sheriff made a mistake in pulling the car over.  The Supreme Court was asked to determine if the mistake of law justified excluding any evidence found during the stop.  Kovner argued as amicus in support of North Carolina’s position that the evidence should not be excluded.  The Supreme Court agreed in an 8-1 decision.

Mellouli v. Lynch[13] – This case asked if, under the Immigration and Nationality Act, the government could deport an alien convicted of a drug paraphernalia crime without proving a connection with items on the federal Controlled Substances Act?  Kovner argued for the government that they could deport Mellouli, an immigrant from Tunisia, who was convicted of possessing drug paraphernalia in Kansas for possessing four Adderall.  The Supreme Court disagreed in a 7-2 decision.

Sturgeon v. Frost[14] – John Sturgeon was traveling on a hovercraft in the Yukon-Charley River, an Alaska navigable river that runs through the Yukon-Charley River National Preserve, owned and managed by the National Park Service.  When Sturgeon was cited for using the hovercraft, he filed suit.  At the Supreme Court, Kovner defended the lower court decisions supporting the federal government’s authority over the river, but the Supreme Court unanimously reversed, holding that the Park Service could not enforce a hovercraft ban on state waterways.

Kansas v. Carr[15] – This case involving the constitutionality of death penalty convictions in Kansas had Kovner arguing only in an amicus capacity supporting the Kansas convictions.  The Supreme Court ultimately upheld the convictions by an 8-1 vote.

Pena-Rodriguez v. Colorado[16] – After Miguel Pena-Rodriguez was convicted of unlawful sexual conduct in Colorado, two jurors revealed racially biased statements made by a juror during deliberations.  However, the Colorado Supreme Court refused to grant Pena-Rodriguez a new trial, arguing that the secrecy of jury deliberations required excluding the jurors’ testimony.  As amicus at the Supreme Court, Kovner argued in support of Colorado’s position.  However, the Supreme Court struck down the conviction in a 5-3 vote.

McLane Company, Inc. v. EEOC[17] – This case involved whether a district court’s decision not to enforce an EEOC subpoena is reviewed de novo or with deference to the trial judge.  Kovner argued for the federal government that no deference should be given to trial court decisions not to enforce subpoenas, but the Supreme Court ruled otherwise in a 7-1 opinion (with only Justice Ginsburg dissenting).

Bristol-Myers Squibb Co. v. Super. Ct. of Cal.[18] – The State of California sought to establish jurisdiction over a class action of claims against Bristol-Myers, including claims from plaintiffs in Texas and New York whose claims were not related to California.  Kovner argued for the United States that California could not exercise jurisdiction over the unrelated claims.  The Supreme Court agreed in a 8-1 decision (Justice Sotomayor dissented).

Nat’l Ass’n of Mfrs. v. Dep’t of Defense[19] – This case involved the interpretation of the Clean Water Act, and whether it gave the federal courts of appeals the authority to directly review the EPA’s Waters of the United States Rule (which defined which waters were covered under the Act’s authority).  While Kovner argued, for the government, that the Rule should fall under a provision that triggers direct appellate review, a unanimous Supreme Court disagreed in an opinion by Justice Sotomayor.

Hughes v. United States[20] – In 2011, the U.S. Supreme Court held 4-1-4 in Freeman v. U.S. that district judges could modify sentences after the Sentencing Commission changes the Sentencing Guidelines even where the sentence was based on a plea bargain.  This case involved the application of the plurality opinion from Freeman to pleas under Fed. R. Crim. Pro. 11(c)(1)(c).  Kovner argued that, as the relevant rule requires the government to agree to a specific sentence, future Sentencing Guideline amendments could not be used to amend the sentence.  The Supreme Court disagreed 6-3 (with Justice Kennedy writing for the Court).

Wis. Cent. Ltd. v. United States[21] – In this case, senior employees of the Canadian National Railway Company argued that, under the Railroad Retirement Tax Act, their stock options should not be considered “taxable income.”  Kovner argued for the government that the stock options should be considered “taxable.”  Ultimately, the Court split 5-4, with Justice Gorsuch writing for the five most conservative Justices on the Court in siding with the employees.

Writings

Before entering law school, Kovner worked as a journalist at the New York Sun,and before that, interned and wrote for the Harvard Crimson, the Charlotte Observer, and the St. Louis Post-Dispatch.  In these roles, Kovner wrote hundreds of articles covering a variety of news stories.  Kovner has reported on issues including gun control,[22] Israel policy,[23] and workplace harassment,[24] among others.

Overall Assessment

At 38, Kovner is one of the youngest Trump nominees so far, and the youngest nominee put forward for the New York bench since Judge Alison Nathan in 2011.  However, unlike Nathan, who narrowly scraped through to confirmation in a party-line vote, Kovner is likely to be approved comfortably.  Setting aside her support from Schumer and Gillibrand, Kovner’s credentials are unquestionable.  Furthermore, Kovner does not have a partisan background and does not seem to be a member of the Federalist Society.  As such, it is likely that Kovner will, when her time comes, be approved with bipartisan support.


[1] Sen. Comm. on the Judiciary, 115th Cong., Rachel P. Kovner: Questionnaire for Judicial Nominees 1.

[2] Sridhar Pappu and Gabriel Snyder, New York Sun Editors Discuss Their Game Plan, the Risk, and Their Four Employees, New York Observer, Jan. 21, 2002. 

[3] See id.

[4] See Kovner, supra n. 1 at 2.

[5] See id.

[6] See id. at 55.

[7] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[8] See Kovner, supra n. 1 at 34.

[9] United States v. Fawwaz, 98-cr-1023 (S.D.N.Y.) (LAK) No. 15-1731 (2d Cir. 2017).

[10] United States v. Jackson, No. 10-cr-298 (S.D.N.Y.) (CM), No. 11-4031 (2d Cir. 2012).

[11] 134 S. Ct. 1683 (2014).

[12] 

[13] 135 S. Ct. 1980 (2015).

[14] 136 S. Ct. 1061 (2016).

[15] 136 S. Ct. 633 (2016).

[16] 137 S. Ct. 855 (2017).

[17] 137 S. Ct. 1159 (2017).

[18] 136 S. Ct. 1773 (2017).

[19] 138 S. Ct. 617 (2018).

[20] No. 17-155 (June 4, 2018).

[21] No. 17-530 (June 21, 2018).

[22] See, e.g. Gun Control Group Plans An Attack on Bush in “Battleground States” Of Missouri, Illinois; Members of Organization Say Gore Can Use The Gun Issue To His Advantage, St. Louis Post-Dispatch, Aug. 2, 2000.

[23] See, e.g., Anti-Israel Drive Seeks to Revive Financial Tactic, N.Y. Sun, May 13, 2002.

[24] See, e.g. Employees Say Hennekens Harassed Them, Harvard Crimson, May 10, 1999.

John Sinatra – Nominee for the U.S. District Court for the Western District of New York

No woman has ever served as a federal judge in Buffalo.  In fact, the entire Western District of New York got its first and only female judge in 2013, when Judge Elizabeth Wolford was appointed to a Rochester-based seat.  The Buffalo-based vacancy on the court, which is the oldest judicial vacancy in New York, saw a tussle over two female candidates during the Obama Administration.  Now, the Trump Administration has put forward a male attorney for the position: John Sinatra.

Background

A Buffalo native, John Sinatra was born there in 1972.  He received a Bachelor of Arts magna cum laude from the State University of New York at Buffalo in 1993 and went on to earn his J.D. from the State University of New York at Buffalo Law School in 1996.[1]  Sinatra then clerked on the New York Court of Appeals (despite its name, New York’s top court) for two years, and then joined the Cleveland office of Jones Day.[2]

In 2007, Sinatra joined the U.S. Department of Commerce in Washington D.C. as a Senior Counsel.  He left a year later to become a Partner at Hodgson Russ, LLP. in Buffalo.  He continues to work there to this day.

Sinatra has periodically applied, unsuccessfully, for state and federal judgeships.  In 2012 and 2013, Sinatra applied to be on the New York Court of Appeals but was not selected.[3]  Sinatra also applied to be a U.S. Magistrate Judge on the Western District in 2015 but Michael Roemer was selected instead.[4]

History of the Seat

Sinatra has been nominated to a seat on the U.S. District Court for the Western District of New York.  This seat opened on March 8, 2015, when Judge William Skretny moved to senior status.  Skretny had actually announced his move to senior status in early 2014, and Sen. Chuck Schumer (D-NY) recommended former U.S. Attorney Denise O’Donnell for the seat.[5]  However, the Obama Administration never nominated O’Donnell.  Many observers speculated that the White House was concerned with O’Donnell’s age (67) and political history.[6]  Facing no action from the Administration, O’Donnell withdrew her candidacy in October 2015.[7]

Determined to seat a female candidate in the Buffalo-based judgeship, Schumer recommended Kathleen Sweet, a civil litigator.  This time, the Obama Administration concurred, nominating Sweet on March 15, 2016.[8]  Sweet received a hearing from the Republican-controlled Senate Judiciary Committee in June 2016, and was voted out unanimously on September 5, 2016.  However, Sweet was blocked from a floor vote by Senate Majority Leader Mitch McConnell, ultimately being returned unconfirmed at the end of the 114th Congress.

After the election of Donald Trump in 2016, Schumer pushed the Administration to renominate Sweet.[9]  However, the Administration interviewed Sinatra, who was proposed by Congressman Chris Collins (R-NY), in early 2017.[10]  After the White House firmly declined to renominate Sweet, Schumer accepted Sinatra’s nomination as part of a package of eight New York judicial nominees.[11]  Sinatra was formally nominated on May 15, 2018.

Legal Experience

Sinatra began his legal career as an associate at Jones Day, a firm that has produced many Trump judicial nominees.  Working in their Cleveland office, Sinatra primarily practiced civil litigation.  For example, Sinatra represented the manufacturer of welding electrodes used in building construction.[12]  The manufacturer was sued after the 1994 Northridge earthquake allegedly damaged a building structure, and Sinatra helped manage the manufacturer’s defense.

After a year at the Department of Commerce, Sinatra became a Partner at Hodgson Russ LLP in Buffalo.  At Hodgson, Sinatra has primarily focused on bringing qui tam cases under the False Claims Act, a federal statute allowing private citizens to sue to recover money fraudulently obtained from the government.  Sinatra notably sued DHL Express, Inc., a shipping company, for improperly charging fuel surcharges to the federal government.[13]  The qui tam suit, defended by attorney Lawrence Vilardo (who was later appointed to the Western District by President Obama), was ultimately unsuccessful.[14]  Sinatra also brought a False Claims Act suit against Columbia University for the alleged defrauding related to federal grants for studying HIV.[15]

Political Activity

Sinatra, a Republican, has a fairly limited political record.  Sinatra has four donations of record, two to then-Sen. Mike DeWine (R-OH), one to Mitt Romney in 2012, and one to Collins.[16]  Sinatra has also contributed to national Republicans, giving to the presidential campaigns of Mitt Romney and John Kasich, as well as to the Republican National Committee.[17]  Additionally, Sinatra volunteered for the campaign of Republican Rep. Tom Reynolds in 2006.[18]

Overall Assessment

Sinatra has one of the most powerful assets he will need for a smooth confirmation, the support of Schumer and fellow New York Democrat Kirsten Gillibrand.  With Schumer serving as leader of the Senate Democratic Caucus and Gillibrand a likely presidential contender in 2020, Democrats are unlikely to undercut either one by opposing a nominee they endorse.  As such, as long as Sinatra continues to maintain support by both senators, he is likely to see a comfortable confirmation.


[1] Sen. Comm. on the Judiciary, 115th Cong., John Sinatra: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. at 13.

[4] Id.

[5] Phil Fairbanks and Jerry Zremski, Denise O’Donnell Nominated for Federal Bench, Buffalo News, June 25, 2014, https://buffalonews.com/2014/06/25/denise-odonnell-nominated-for-federal-bench/.   

[6] Jerry Zremski, How Schumer Tried and Failed to Get a Woman on Buffalo’s Bench, Buffalo News, May 14, 2018, https://buffalonews.com/2018/05/14/the-briefing-how-schumer-tried-and-failed-to-get-a-woman-judge-on-buffalos-bench/.  

[7] Jerry Zremski, Vilardo Confirmed as Federal Judge as O’Donnell Bows Out, Buffalo News, Oct. 26, 2015, https://buffalonews.com/2015/10/26/vilardo-confirmed-as-federal-judge-as-odonnell-bows-out/.  

[8] See Zremski, supra n. 4.

[9] Jerry Zremski, Schumer: White House Insisted on Sinatra, Not Sweet, As Federal Judge, Buffalo News, May 10, 2018, https://buffalonews.com/2018/05/10/schumer-white-house-insisted-that-sinatra-not-sweet-be-federal-judge/.  

[10] See Sinatra, supra n. 1 at 27.

[11] See Zremski, supra n 7.

[12] See Westside Assocs, Ltd. v. Lincoln Electric Co., No. SC 045651 (Los Angeles Cnty. Super. Ct. 2000) (Judge Edward Kakita).

[13] See U.S. ex rel. Grupp v. DHL Express (USA), Inc., 47 F. Supp. 3d 171 (W.D.N.Y. 2014) (Judge John Curtin), aff’d, 604 F. App’x 40 (2d Cir. 2015).

[14] See id.

[15] See U.S. ex rel. Love v. Trustees of Columbia Univ. in the City of New York, No. 11-cv-4353 (S.D.N.Y.) (Judge Lorna Schofield).

[17] See id.

[18] See Sinatra, supra n. 1 at 13.