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

New York’s Democratic Senators share a split in recommending candidates for the federal bench, with the more junior Kirsten Gillibrand getting one pick for every three or four that the more senior Chuck Schumer gets. After nominating four Schumer picks to New York District Courts, the White House has chosen Gillibrand selection Jennifer Rochon.

Background

Born in 1970 in Michigan, Jennifer Louise Rochon received her B.A. from the University of Michigan in 1992 and, after volunteering with the Peace Corps, a J.D. in 1997 from New York University School of Law. After law school, Rochon clerked for Judge Maryanne Trump Barry on the U.S. Court of Appeals for the Third Circuit, before joining Kramer Levin Naftalis & Frankel, where she became a Partner in 2006. Since 2013, Rochon has been general counsel for Girl Scouts of the USA.

History of the Seat

Rochon has been nominated to the vacancy on the U.S. District Court for the Southern District of New York vacated on May 1, 2021 by Judge George Daniels’ move to senior status. Rochon was recommended for the vacancy by Gillibrand and was nominated on December 15, 2021.

Political Activity

Rochon has made occasional political donations throughout her career, including donations to Biden, Reps. Antonio Delgado, Anthony Brindisi, and Max Rose.

Legal Career

Rochon spent the first thirteen years of her post-clerkship career at Kramer Levin Naftalis & Frankel, where she served both as associate and as a litigation partner. Early in her career, she represented immigration organizations as amici in constitutional challenges to the Immigration and Nationality Act. See Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001); Phu Chan Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002); Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002).

Among her more prominent cases, Rochon represented a dental floss manufacturer in a false advertising suit against Pfizer for claims that its mouthwash was as effective as flossing, securing a preliminary injunction against the challenged advertising. See McNeil-PPC, Inc. v. Pfizer, Inc., 351 F. Supp. 2d 226 (S.D.N.Y. 2005).

In 2013, Rochon, a third generation girl scout herself, was appointed to be the first general counsel for the Girl Scouts of America, where she currently serves.

Overall Assessment

Coming from an in-house environment, Rochon would come to the bench with a slightly different background that most federal judges. Additionally, her affiliation with the Girl Scouts, an organization that is widely praised across the political spectrum, is also likely to garner Rochon bipartisan support for confirmation.

84 CommentsLeave a comment

Judge Sherilyn Peace Garnett – Nominee to the U.S. District Court for the Central District of California

U.S. District Judge Barry Moskowitz has had luck placing his clerks under the Biden Administration. After Judge Jinsook Ohta, Judge Sherilyn Garnett has now been nominated to the federal bench.

Background

The 52 year old Garnett attended the University of California Riverside, getting a B.A. with honors in 1991, She then received a J.D. from Harvard Law School in 1995.

After law school, Garnett joined the Chicago office of Altheimer & Gray as an associate before clerking for Judge Barry Moskowitz on the U.S. District Court for the Southern District of California. After a year at the Los Angeles Office of Arnold & Porter, Garnett became a federal prosecutor with the U.S. Attorney’s Office for the Central District of California.

In 2014, Governor Jerry Brown of California appointed Garnett to the Los Angeles County Superior Court. Garnett currently serves on the Court.

History of the Seat

Garnett has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on November 4, 2018 by Judge Manuel Real, who the last judge appointed by President Lyndon B. Johnson still serving in active status when he left the bench.

On August 28, 2019, President Trump nominated Rick Richmond, a longtime leader in the Federalist Society, to fill this vacancy. However, Richmond never received a hearing before the Senate Judiciary Committee, and the seat was left open at the end of the Trump Administration.

Legal Experience

Garnett spent the vast majority of her pre-bench legal career as a federal prosecutor. Among the matters she handled, Garnett prosecuted Dana Christian Welch, who was sentenced to 30 months of federal prison for shooting lasers into the cockpits of commercial airliners about to land, causing “flash blindness” in the pilots. See Press Release, Federal Bureau of Investigation, Los Angeles Field Office, Orange County Man Who Fired Lasers at Commercial Aircraft Sentenced to 2.5 Years in Federal Prison, Nov. 3, 2009. Garnett also prosecuted Billy Cottrell, a former Caltech graduate student convicted of participating in a conspiracy to firebomb over 130 vehicles as an act of ecoterrorism. See Nathan McIntire, Judge Orders Former Caltech Grad Student to Serve At Least 18 More Months in Federal Prison, Pasadena Star News, Nov. 16, 2009.

Judicial Experience

Since 2014, Garnett has served as a judge on the Los Angeles County Superior Court. In this role, Garnett presides over trial court matters in criminal, civil, family, and other state law matters.

Statements

While Garnett has been fairly reticent throughout her career, she was quoted in a number of articles during a 2013 government shutdown caused by a conflict between the Obama Administration and Congressional Republicans. See, e.g., Ian Lovett, Unable to Take Care of Business in L.A., N.Y. Times Blogs, Oct. 1, 2013. In the articles, Garnett was sharply critical of Congress for the burden they placed on government employees, calling their lack of action “really stupid.” See id.

Overall Assessment

As a state judge with a background as a prosecutor, Garnett could attract bipartisan support for confirmation. While some lawmakers may raise eyebrows with her willingness to call their actions “stupid”, it is unlikely that those comments will derail an otherwise smooth confirmation.

38 CommentsLeave a comment

Judge Sunshine Sykes – Nominee to the U.S. District Court for the Central District of California

The first native american judge on the California state bench, Judge Sunshine Sykes looks likely to break barriers on the federal bench as well.

Background

Born on the Navajo Nation Reservation in Arizona in 1974, Sykes attended Stanford University, getting a B.A. in 1997. She then received a J.D. from Stanford Law School in 2001.

After law school, Sykes joined California Indian Legal Services and then spent two years at the Southwest Justice Center and the California Department of Social Services. In 2005, Sykes joined the County Counsel’s Office in Riverside County.

In 2013, Governor Jerry Brown of California appointed Sykes to the Riverside County Superior Court. She currently serves on the Court.

History of the Seat

Sykes has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on March 3, 2020 by Judge James Selna. The Trump Administration did not nominate a candidate for this vacancy before the end of the Presidency.

Legal Experience

Sykes started her career working for California Indian Legal Services. She then spent two years with the Southwest Justice Center and the California Department of Social Services, where she served as an attorney for juvenile offenders. See County Attorney Appointed to Judicial Seat, City News Service, Dec. 5, 2013. See, e.g., Leland L. v. Superior Ct. of Riverside, 2004 Cal. App. Unpub. LEXIS 2871 (Mar. 30, 2004).

From 2005 to 2013, Sykes worked as Deputy County Counsel in Riverside County, working on writing ordinances, vetting documents, and representing the county in judicial proceedings.

During her time as County Counsel, Sykes saw her name in a discrimination suit, where the plaintiff alleged that his colleague responsible for the discrimination developed a dislike for him because he protested against an adulterous relationship she was engaged in with Sykes’ then-boyfriend. See Rodriguez v. Cal. Rural Legal Assistance, Inc., Case No. ED CV 13-958-JFW, 2014 WL 3900234 (C.D. Cal. June 30, 2014). The suit was ultimately dismissed by U.S. District Judge John Walter, after U.S. Magistrate Judge Sheri Pym found the affidavits involving the extra-marital relationship to be irrelevant. See id.

Judicial Experience

Since 2013, Sykes has served as a judge on the Riverside County Superior Court. In this role, Sykes presides over trial court matters in criminal, civil, family, and other state law matters. At the time of her appointment, Sykes was the first native american state court judge in California. See County Attorney Appointed to Judicial Seat, City News Service, Dec. 5, 2013.

Among her notable cases from the bench, Sykes presided over a suit against Monster Beverage Corp. by a man who accused the beverage of causing his heart attack. See Mike Curley, Appeals Court Upholds Verdict in Monster Heart Attack Case, Law 360, Mar. 26, 2021. Sykes bifurcated the trial between causation and damages, and the jury unanimously found for Monster, a verdict upheld on appeal. See id. Sykes also presided over a lawsuit brought by the families of three girls allegedly molested at Liberty Elementary School. See School District Settles Suit Arising From Alleged Sexual Abuse of Students, City News Service, Dec. 3, 2018. The suit ended in a $6.2 million settlement.

Statements

Sykes has spoken out on the need for greater diversity in the legal profession and, in particular, the prejudice she has faced for being Native American. See, e.g., Diverse Judges Share Paths to Bench, Advise Young Lawyers, U.S. Official News, Feb. 9, 2016. In a 2016 panel with the American Bar Association (moderated by U.S. District Judge J. Michelle Childs), Sykes noted that her re-election appointment had indicated that she was not qualified to be a judge because she was Native American. See id.

Overall Assessment

As a state judge with nearly a decade of experience and little controversy during her tenure, Sykes should have little trouble retaining the Democratic support she would need for confirmation.

57 CommentsLeave a comment

Judge Kenly Kato – Nominee to the U.S. District Court for the Central District of California

On October 8, 2017, Judge Beverly Reid O’Connell, a federal judge in Los Angeles, unexpectedly and tragically passed away after collapsing in a middle of a speech to the California State Bar. Her seat still sits vacant to this day, with the nomination of U.S. Magistrate Judge Kenly Kato being the Biden Administration’s first attempt to fill it.

Background

Kenly Kiya Kato got her B.A. summa cum laude from the University of California Los Angeles in 1993, and a J.D. cum laude from Harvard Law School in 1996. After graduating, Kato clerked for Judge Robert Takasugi on the U.S. District Court for the Central District of California before joining the federal public defender’s office in Los Angeles.

In 2003, Kato returned to private practice, and worked as a solo practitioner for ten years.

In 2014, Kato was selected as a U.S. Magistrate Judge for the U.S. District Court for the Central District of California

History of the Seat

Kato has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on October 8, 2017 by the untimely death of Judge Beverly Reid O’Connell.

On November 21, 2019, the Trump Administration nominated U.S. Magistrate Judge Steve Kim, a colleague’s of Kato. However, Kim never received a hearing before the Senate Judiciary Committee and his nomination expired at the end of the Trump Administration.

Legal Experience

Kato started her career as a federal public defender, representing indigent defendants in the U.S. District Court for the Central District of California. Among her clients, Kato defended Steven and Philip Alexander, brothers who allegedly flashed white power signals and harassed a white woman walking with her black fiance and biracial sons. See David Houston, Hate Crimes, City News Service, July 13, 1999. She also represented Desmond Abraham, a cruise ship worker accused of sexually assaulting two female passengers, when prosecutors declined to proceed to trial on the charges due to a lack of evidence. See Matt Krasnowski, Sexual Assault Charges Dropped Against Cruise Ship Workers, Copley News Service, May 23, 2000.

Kato also represented clients on appeal, successfully persuading the Ninth Circuit to order the dismissal of charges against her client on the grounds that the trial judge erred in ordering a mistrial and that her client’s Double Jeopardy rights would be violated by a retrial. United States v. Bonas, 344 F.3d 945 (9th Cir. 2003).

Jurisprudence

Since 2014, Kato has served as a U.S. Magistrate Judge in Los Angeles. In this role, she presides over settlement, preliminary hearings, bail, and any cases where the parties consent to her jurisdiction. Among the matters she has handled as a magistrate judge, Kato recommended that an inmate’s civil rights claim for violations of privacy be dismissed, noting that the inmate had failed to establish that the violative conduct alleged rose to the level of a constitutional violation. See Morris v. CDCR, 2017 U.S. Dist. LEXIS 71473 (C.D. Cal. Mar. 13, 2017).

In a benefits case, the Ninth Circuit affirmed Kato’s ruling remanding the case back to the Administrative Law Judge after finding error instead of awarding benefits to the petitioner. See Brandon v. Saul, 821 F. App’x 857 (9th Cir. 2020).

Political Activity

Kim has a few political contributions to her name, including a $1000 contribution to the Kerry for President campaign in 2004.

Statements and Writings

As a law student, Kato coauthored a review discussing the political and cultural status of Asian Americans. See Perry S. Chen and Kenly Kiya Kato, The State of Asian America: Activism and Resistance in the 1990s, 30 Harv. C.R.-C.L. L. Rev. 279 (Winter 1995). In the paper, Kato discusses the essays from the book “The State of Asian America” and notes that the essays reinforce the need for the Asian American community to self-advocate without falling into pre-existing stereotypes imposed by the political right and left. See id.

Overall Assessment

Judge Kato’s career threads the needle between the more unconventional nominees sought by the White House and the more traditional candidates picked by California’s senators. As such, Kato is likely to see a comfortable confirmation.

67 CommentsLeave a comment

Judge Fred Slaughter – Nominee to the U.S. District Court for the Central District of California

The son of former college basketball star and notable sports agent, Judge Fred Slaughter has made a name for himself in the Southern California legal field, and is now poised for confirmation to the Central District of California.

Background

Fred W. Slaughter got a B.A. degree from the University of California, Los Angeles in 1996, and a J.D. from U.C.L.A. School of Law in 1999. After graduating, Slaughter joined the Los Angeles City Attorney’s Office as a Deputy City Attorney.

In 2002, Slaughter joined the U.S. Attorney’s Office for Central District of California as a federal prosecutor. In 2014, he was named by Gov. Jerry Brown to the Orange County Superior Court, where he currently serves.

History of the Seat

Slaughter has been nominated to the U.S. District Court for the Central District of California, to a seat vacated on July 5, 2019, by Judge Andrew Guilford. The Trump Administration never made a nomination to fill this vacancy. Slaughter was nominated on December 15, 2021.

Legal Experience

Slaughter started his legal career as a Deputy City Attorney with the City of Los Angeles, where he led prosecutions against bandit taxi cab drivers, who operated without city licenses. See Tax Fraud, City News Service, Feb. 7, 2001.

While Slaughter held a number of legal positions throughout his career, the primary focus has been as a federal prosecutor with the U.S. Attorney’s Office for the Central District of California.

As a federal prosecutor, Slaughter prosecuted Magdaleno Ramirez-Banuelos for transporting over 50 pounds of marijuana in a backpack. See Mexican Citizen Sentenced for Marijuana Related Felony, U.S. Fed News, May 14, 2004. He also prosecuted David Patrick Williams, a white supremacist, for providing a firearm to a felon. See Founding Member of White Supremacist Organization, European Kindred (EK) Gang, Pleaads [sic] Guilty in Federal Court to a Firearms Offense, States News Service, Aug. 10, 2009.

Jurisprudence

Since 2014, Slaughter has served as a judge on the Orange County Superior Court. In this role, Slaughter presides over trial court matters in criminal, civil, family, and other state law matters. Among the notable matters that he presided over as a judge, Slaughter found a juvenile defendant guilty of five counts of felony vandalism, by using average calculations of damage from the graffiti to be over $400 per count. See In re A.W., 39 Cal. App. 5th 941, 944 (2019). The California Court of Appeals reversed, finding that there was insufficient evidence to prove beyond a reasonable doubt that the damage from each count was over the $400 threshold, and remanded, ordering Slaughter to find the juvenile guilty of misdemeanors instead of felonies. See id.

Overall Assessment

There is little in Slaughter’s background that should cause him issue during the confirmation process. As such, senators are likely to focus attention on other nominees and Slaughrer should be a relatively smooth confirmation.

126 CommentsLeave a comment

Jessica Clarke – Nominee to the U.S. District Court for the Southern District of New York

Civil rights attorney Jessica Clarke, currently with the New York Attorney General’s Office, is President Biden’s second nomination to the Southern District of New York.

Background

The 38 year old Clarke gained her undergraduate degree from Northwestern University in 2005 and then gained a J.D. from the Ohio State University Moritz College of Law in 2008.

After graduating, Clarke clerked for Judge Solomon Oliver on the U.S. District Court for the Northern District of Ohio. Clarke then joined the Department of Justice, working in the Civil Rights Division during the Obama Administration. In 2016, Clarke left to join the civil rights firm Emery Celli Brinckerhoff & Abady. In 2019, Clarke joined the New York Attorney General’s Civil Rights Bureau as Chief, where she currently works.

History of the Seat

Clarke 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 Colleen McMahon, who took senior status on April 21, 2021. Clarke was recommended by Senate Majority Leader Chuck Schumer on September 1, 2021 and was nominated on December 15, 2021.

Legal Career

Clarke started her post-clerkship career at the Civil Rights Division of the U.S. Department of Justice, where she worked on the Housing & Civil Enforcement Division. Notably, Clarke was trial counsel for the government in prosecuting the towns of Colorado City, Arizona, and Hildale, Utah, for discriminating in housing against individuals who were not members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints. See Fernanda Santos, Town on Trial in Complaints of Bias Against Sect Outsiders, N.Y. Times, Jan. 21, 2016. Lawyers for the town accused the government of discriminating against an unpopular religion. See id. The trial ended with a verdict for the government, which was upheld on appeal. See Howard Fischer, Court Upholds Ruling Colorado City Abused Power, Arizona Capitol Times, Aug. 26, 2019, https://azcapitoltimes.com/news/2019/08/26/court-upholds-ruling-colorado-city-abused-power/.

From 2016 to 2019, Clarke was at the Emery Celli Brinckerhoff & Abady. During this time, Clarke represented Stephanie Rosenfeld, a Brooklyn prosecutor who alleged that her colleagues illegally wiretapped her cellphone. See Rosenfeld v. Leach, 370 F. Supp. 3d 335 (E.D.N.Y. 2019).

Since 2019, Clarke has been with the New York Attorney General’s Office. Among the matters she handled there, Clarke led the Attorney General’s successful suit against Rennselear County’s use of limited early voting polling locations, in which a judge found that the locations chosen would not lead to equitable access to the polls. See People v. Schofield, 2021 N.Y. Misc. LEXIS 5247 (N.Y.S. June 7, 2021).

Overall Assessment

Given her youth and focus on civil rights litigation, Clarke is likely to draw opposition from Republican Senators. However, there is little that would draw Democratic senators to oppose her, which gives Clarke a strong chance at both confirmation and, potentially, elevation.

56 CommentsLeave a comment

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

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

Background

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

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

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

History of the Seat

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

Legal Experience

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

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

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

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

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

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

Writings and Speeches

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

School to Prison Pipeline

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

Gerrymandering

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

Overall Assessment

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

69 CommentsLeave a comment

Nina Morrison – Nominee to the U.S. District Court for the Eastern District of New York

Nina Morrison has spent the last twenty years representing inmates in seeking to re-evaluate convictions and establish evidence of innocence. She now has an opportunity to step into a different role, as a judge on the U.S. District Court for the Eastern District of New York.

Background

Born in 1970, the daughter of Alan Morrison, a Dean at the George Washington University Law School who argued twenty cases before the U.S. Supreme Court, Morrison attended Yale University, graduating in 1992. Morrison then attended New York University Law School, graduating in 1998. She then clerked for Judge Pierre Leval on the U.S. Court of Appeals for the Second Circuit.

After her clerkships, Morrison became an associate at Emery Cuti Brinckerhoff & Abady LLP where she focused on civil rights litigation. After three years there, Morrison joined the Innocence Project, where she works as executive director and senior litigation counsel.

History of the Seat

Morrison has been nominated for a seat on the U.S. District Court for the Eastern District of New York. This seat opened when Judge Dora Irizarry moved to senior status on January 26, 2020. On August 12, 2020, the White House nominated HUD attorney David Woll to fill this vacancy, but Woll never received a hearing before the Senate Judiciary Committee.

On September 1, 2021, Morrison was recommended for a nomination by Senate Majority Leader Chuck Schumer to the White House. She was nominated on December 15, 2021.

Legal Experience

While Morrison has held other positions, her primary experience over the past twenty years has been at the Innocence Project, a non-profit that advocates on behalf of individuals wrongly convicted of crimes. Morrison’s work at the Project led to the re-evaluation of hundreds of cases and the release of many. Not all the individuals released were “proven innocent”, with, in some cases, the evidence merely casting doubt on the original conviction rather than definitively establishing innocence. See, e.g., Sarah Brumfield, Maryland Man Convicted of Two Kilings in 1985 is Freed After DNA Tests Undermine Evidence, A.P., June 19, 2003. In other cases, prosecutors moved to retry defendants who had managed to overturn their original convictions. See, e.g., Bruce Lambert, Prosecutor Will Retry Man Freed by DNA in L.I. Rape-Murder, N.Y. Times, Sept. 12, 2003. We have summarized some of the important cases Morrison worked on by the state of conviction below.

Arkansas

Morrison represented Ledell Lee, an Arkansas death row inmate seeking a stay to permit DNA testing to prove his innocence. Kelly P. Kissel and Jill Bleed, Arkansas Suffers 2 Setbacks to Multiple Execution Plan, A.P., Apr. 20, 2017. Lee was ultimately executed after the U.S. Supreme Court rejected an appeal. Kelly P. Kissel and Sean Murphy, Arkansas Overcomes Legal Hurdles, Carries Out Execution, A.P., Apr. 21, 2017. Four years after the execution, new DNA evidence emerged linking a different man to the murder that Lee was executed for. See Heather Murphy, 4 Years After an Execution, a Different Man’s DNA is Found on the Murder Weapon, N.Y. Times, May 7, 2021.

Florida

Morrison got involved in reviewing and advocating for DNA testing in 80 Florida cases after the Legislature, in 2003, opened a two-year window for such testing. Mitch Stacy, Florida Attorneys Scramble to Beat Deadline for Inmate DNA Testing, A.P., Sept. 25, 2003. Among the men freed was Wilton Dedge, who spent 22 years in prison after being mistakenly identified by a rape victim. See Florida Frees Exonerated Man After 22 Years in Prison, But Leaves Him With Nothing, A.P., Sept. 12, 2004. Another was Orlando Bosquette, a prison escapee who was exonerated by the coordinated efforts of Morrison and Florida prosecutor Mark Kohl. See Jim Dwyer, Innocent Man Describes Decade of Life on the Run, N.Y. Times, May 23, 2006.

New York

Morrison represented Jeffrey Deskovic, convicted of the rape and murder of his high school classmate in 1990. See Fernanda Santos, DNA Testing Frees Man Imprisoned for Half His Life, N.Y. Times, Sept. 21, 2006. Deskovic’s request for DNA testing was initially fought by District Attorney Jeanine Pirro (later a GOP candidate for Attorney General) but was later approved by her successor Janet DiFiore (currently a judge on New York’s highest court), leading to Deskovic’s release. See id. Morrison also successfully obtained the release of Scott Fappiano, who was exonerated after an inventory of DNA samples in his rape conviction were retested. See Nicholas Confessore, After 21 Years, DNA Testing Sets Man Free in Rape Case, N.Y. Times, Oct. 7, 2006.

Notably, Morrison represented Roy Brown, who sought to overturn his conviction for the murder of social worker Sabina Kulakowski, arguing that DNA evidence suggested the real killer was her boyfriend’s brother. See Fernanda Santos, Inmate Finds Vindication in His Quest for a Killer, N.Y. Times, Dec. 21, 2006. However, Judge Peter Corning declined to order a release without additional evidence and testing. Fernanda Santos, Prosecutors Pursue DNA Case as Judge Lets Verdict Stand in ‘91 Killing, N.Y. Times, Dec. 22, 2006. However, after prosecutors subsequently exhumed the body of the accused killer and found a DNA match, Brown was exonerated and released. See Fernanda Santos, With DNA From Exhumed Body, Man Finally Wins Freedom, N.Y. Times, Jan. 24, 2007.

Texas

Morrison was an advocate for Brandon Moon, who was convicted of rape in 1988 largely based on the expert testimony of blood testing expert Glen David Adams. See Barbara Novovitch, Free After 17 Years for a Rape He Did Not Commit, N.Y. Times, Dec. 22, 2004. The case led to Moon’s exoneration and the exposure of flaws in Adams’ methodology, with the El Paso District Attorney publicly apologizing to Moon for the time he had spent in prison. See id. Morrison also represented James Waller, who was exonerated of a raping a minor child in Dallas after DNA evidence ruled him out as a suspect. See Ralph Blumenthal, A 12th Dallas Convict is Exonerated by DNA, N.Y. Times, Jan. 18, 2007.

Notably, Morrison represented Michael Morton, who was convicted of killing his wife in 1987 despite evidence showing that she had been killed by an intruder. See Will Weissert, DNA Helps Free Texas Man Convicted in Wife’s Death, A.P., Oct. 3, 2011. The case also drew attention because exculpatory evidence, including statements by Morton’s toddler son, who was home at the time of the murder, were not properly disclosed to defense counsel. See Brandi Grissom, Inmate’s Release Brings Call for New Evidence Law, N.Y. Times, Oct. 9, 2011. The withholding of evidence eventually led to the conviction of prosecutor Ken Anderson for contempt of court. See Chuck Lindell, Ken Anderson to Serve 10 Days in Jail, Austin American Statesman, Nov. 8, 2013, http://www.statesman.com/news/news/ken-anderson-to-serve-10-days-in-jail/nbmsH/.

Statements and Writings

In her role as the Executive Director of the Innocence Project, Morrison has spoken out frequently about her clients and the state of current criminal law. For example, Morrison has been critical of laws that restrict inmates to having a single year to present DNA evidence of innocence, noting that preparing cases often takes much longer. See Sharon Cohen, Deborah Hastings, For 110 Inmates Freed By DNA Tests, True Freedom Remains Elusive, A.P., May 28, 2002. Morrison has also been critical of eyewitness accounts of crimes, noting that they are frequently unreliable and result in innocent people getting locked up. See Ron Kampeas, Setbacks in Sniper Search Illustrate the Frequent Unrealiability of Eyewitnesses, A.P., Oct. 17, 2002. She has pushed for more resources for the re-integration of exonerees. See Florida Frees Exonerated Man After 22 Years in Prison, But Leaves Him With Nothing, A.P., Sept. 12, 2004. Morrison has also spoken out for greater accountability against prosecutors who fail to disclose exculpatory evidence. Nina Morrison, What Happens When Prosecutors Break the Law, N.Y. Times, June 18, 2018. See also Emily Bazelon, She was Convicted of Killing Her Mother. Prosecutors Withheld the Evidence That Would Have Freed Her, N.Y. Times, Aug.1, 2017; Tom Hays, Report Blames Prosecutor Missteps in Botched NYC Convictions, N.Y. Times, July 9, 2020.

In an interview describing the Deskovic case, Morrison noted that she joined the Innocence Project because she wanted to fight for “people who didn’t have a voice or an advocate” and because she wanted to have a greater impact than merely securing settlements in favor of civil rights plaintiffs. See Adam Nichols, DNA Key to Unlock a Cell: Attorney’s “Long Shot” Triumph to Clear Man, Daily News, Sept. 24, 2006.

In other writings, Morrison has praised state courts that have drawn broad constitutional protections for criminal defendants, noting that they are remedying the “constitutional amnesia” of federal courts by more closely aligning their jurisprudence with the underlying principles of the Bill of Rights. See Nina Morrison, Curing “Constitutional Amnesia”: Criminal Procedure Under State Constitutions, 73 N.Y.U. L. Rev. 880 (June 1998).

Political Activity

Morrison has been a frequent donor to Democratic candidates for office, giving to the presidential campaigns of John Kerry, Barack Obama, Hillary Clinton, and Joe Biden. Morrison has also donated to gubernatorial candidates Andrew Gillum and Stacey Abrams.

Overall Assessment

Having spent two decades working intimately in the trenches of criminal law and procedure, Morrison will join the bench with no learning curve on those issues. While she has less experience with civil litigation, Morrison will have an opportunity to convince senators that her background reflects the intellect and the ability to get up to speed on those issues.

Given her success in overturning convictions and her outspoken-ness on issues of criminal law, many senators are likely to argue that Morrison would be an “activist” on the bench. However, Morrison and her defenders can always argue that ensuring that the innocent are not punished for someone else’s crime is an issue that everyone can get behind.

30 CommentsLeave a comment

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

Hector Gonzalez is a well-experienced litigator who, despite his nomination to the federal bench by Trump last year, has strong Democratic party ties.  While Gonzalez was not confirmed in 2020, he stands favored to take the bench next year.

Background

The 58-year-old Gonzalez got his B.S. from Manhattan College in 1985 and then attended the University of Pennsylvania Law School, graduating in 1988.[1] 

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

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

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

History of the Seat

Gonzalez has been nominated for a seat on the U.S. District Court for the Eastern District of New York to the seat vacated by Judge Brian Cogan on June 12, 2020.  Gonzalez was previously nominated for this seat late in the Trump Administration but was never confirmed.

Legal Career

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

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

Political Activity

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

Civilian Complaint Review Board

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

Overall Assessment

Gonzalez’s record overall is fairly liberal, and his renomination by the Biden Administration is a recognition of that fact.  While Gonzalez is likely to draw strong opposition from Republicans due to his record on policing in particular, Gonzalez looks likely to be confirmed the second time around.

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

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

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

[4] See id.

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

[6] See Gonzalez, supra n. 1.

[7] See id. 

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

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

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

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

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

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

75 CommentsLeave a comment

Judge William Pocan – Nominee to the U.S. District Court for the Eastern District of Wisconsin

Wisconsin has been home to some pitched federal judicial confirmation battles during both the Obama and Trump Administrations, as the state’s politically divided senate duo have alternately cooperated and clashed on nominees. As such, it’ll be interesting to see which side of that pattern Milwaukee Circuit Court Judge William Pocan will follow.

Background

William S. Pocan received his B.A. from the University of Wisconsin-Parkside in 1981 and his J.D. from the University of Wisconsin Law School in 1984. After a year as an associate at Brookhouse & Brookhouse in Kenosha, Pocan joined Jastroch & LaBarge, where he stayed until 2006.

In 2006, Governor Jim Doyle appointed Pocan to the Milwaukee County Circuit Court, where Pocan has served ever since.

In 2014, Pocan was one of three candidates recommended to President Barack Obama to replace Judge Charles Clevert on the U.S. District Court for the Eastern District of Wisconsin. Gayle Worland, Three Nominees for Eastern District Judgeship Named, Wisconsin State Journal, Feb. 15, 2014, https://madison.com/wsj/news/local/crime_and_courts/three-nominees-for-eastern-district-court-judgeship-named/article_ff3e8bc3-9cbf-55c0-b516-58df781cd045.html. President Obama nominated U.S. Bankruptcy Judge Pamela Pepper, who was confirmed and currently serves on the bench.

History of the Seat

Pocan has been nominated to the U.S. District Court for the Eastern District of Wisconsin, to a seat vacated on December 31, 2019, by Judge William Griesbach. In June 2021, Pocan was one of four candidates recommended by the White House for the vacancy by Wisconsin senators Ron Johnson and Tammy Baldwin, a Republican and a Democrat, respectively. See Craig Gilbert, Baldwin and Johnson Bring Forward Four Candidates to Fill Federal Judgeship in Green Bay, Milwaukee Journal Sentinel, June 22, 2021, https://www.jsonline.com/story/news/politics/2021/06/22/four-candidates-named-fill-federal-judgeship-green-bay/5312798001/. Pocan was nominated on December 15, 2021.

Political Activity

Pocan has been active in making political donations to Wisconsin candidates, largely giving to Democrats including Supreme Court candidates Shirley Abrahamson, Ann Walsh Bradley, and Louis Butler.

Legal Experience

Excluding a year at Brookhouse & Brookhouse, Pocan has spent his entire pre-bench career at the firm of Jastroch & LaBarge, where he focused primarily on plaintiff’s side litigation. Pocan was particularly notable in “Lemon Law” litigation involving cars in poor condition that were sold to consumers. See, e.g., Eric Freedman, Ford Loses Lemon Law Appeal, Automotive News, Mar. 5, 2001. Pocan also represented Adele Garcia, who filed a “Lemon Law” suit after the transmission on her Mazda left her stranded in Montana. See Anita Weier, DOT, Consumers Tell Panel: Don’t Weaken State Lemon Law, Capital Times, Feb. 20, 2004.

Jurisprudence

Since his appointment in 2006, Pocan has served on the Milwaukee County Circuit Court, where he has presided over juvenile, civil, and criminal cases. Among the notable matters he presided over, Pocan awarded a $3.2 million judgment to a man burned in an apartment fire started by a co-tenant, after a jury found the landlord and insurer liable. See Bruce Vielmetti, Tenant Burned in Apartment Fire Wins $3.2 Million Award, Proof and Hearsay, Oct. 12, 2012.

Notably, Pocan rejected a settlement agreement between dairy groups and the Wisconsin Department of Natural Resources, finding that the ruling improperly limited environmental protection authority and powers held by the Department. See Steven Verburg, Judge Denies DNR on Dairies: He Rules Agency Can’t Change Laws to Placate Big Farms, Water Pollution, Wisconsin State Journal, Jan. 16, 2019.

Among other notable rulings, Pocan ruled that Stuart Yates, a convicted sex offender, could have limited visitation with his severely ill 9 year old son, overruling a hospital restriction on such visits. See Ivan Moreno, Milwaukee Sex Offender Granted Limited Visits With Sick Son, A.P., Apr. 3, 2018.

Some of Pocan’s rulings over his fifteen year long judicial career have been reversed by higher courts. For example, the Wisconsin Court of Appeals reversed Pocan’s ruling denying David Turnpaugh compensation for wrongful conviction for solicitation. See Bruce Vielmetti, Appeals Court Says State Owes Man Wrongly Convicted of Soliciting Prostitute, Proof and Hearsay, May 22, 2012.

Overall Assessment

A couple of points that have yet to be mentioned in this article: Pocan would be the first openly gay judge on the Wisconsin federal bench; he is also the brother of U.S. Rep. Mark Pocan, a political lineage that does not appear to have caused him active Republican opposition. Overall, Pocan’s nomination will live and die based on Sen. Ron Johnson’s blue slip. Given that the White House chose to nominate him over longtime federal defender Krista Halla Valdes, it is likely that Johnson has agreed not to blue slip Pocan, even if he doesn’t ultimately vote for him.

17 CommentsLeave a comment