Judge Jinsook Ohta – Nominee to the U.S. District Court for the Southern District of California

The U.S. District Court for the Southern District of California is currently short seven judges, with the shortfall affecting caseloads and dockets. As such, the Biden Administration’s nomination of San Diego Superior Court Judge Jinsook Ohta likely couldn’t come soon enough.

Background

Jinsook Ohta attended Yale University and New York University Law School before clerking for Judge Barry Moskowitz on the U.S. District Court for the Southern District of California.

After her clerkship, Ohta became an Associate with O’Melveny & Myers and then with Sheppard Mullin. In 2011, Ohta became an Assistant Attorney General with the California Attorney General’s Office, staying with the Office until Gov. Gavin Newsom appointed her to the San Diego County Superior Court in 2020. Ohta is currently a judge with the court.

History of the Seat

Ohta has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on January 23, 2019, by Judge Barry Moskowitz’s move to senior status.

Upon the recommendation of California Senators Dianne Feinstein and Kamala Harris, on October 17, 2019, the Trump Administration nominated Jones Day Partner Shireen Matthews to fill this vacancy. While Matthews was unanimously approved by the Senate Judiciary Committee in July 2020, her nomination was never given a floor vote by Senate Majority Leader Mitch McConnell, leaving the vacancy open to this day.

Legal Experience

Ohta started her career as a clerk for Judge Barry Moskowitz on the U.S. District Court for the Southern District of California. After that role, Ohta moved to the firms of O’Melveny & Myers and Sheppard Mullin.

However, Ohta spent the most significant portion of her career in the Consumer Protection Division of the California Attorney General’s Office. Among the matters she handled there, Ohta was able to negotiate a $90 million judgment against GlaxoSmithKline for deceptive claims made while marketing GSK Diabetes Products. See People v. GlaxoSmithKline, LLC, 2012 Cal. App. LEXIS 1355.

In one of the most notable cases she handled with the office, Ohta secured a $344 million judgment against Johnson & Johnson for deceptive marketing regarding the dangers of mesh vaginal implants. The judgment was the result of a bench trial in front of Superior Court Judge Eddie Sturgeon.

In another notable matter, Ohta secured a $280 million judgment against Dish Network for violating federal and state Do-Not-Call laws. See United States v. Dish Network LLC, 256 F. Supp. 3d 810 (C.D. Ill. 2017). The judgment was largely affirmed by the Seventh Circuit on appeal. United States v. Dish Network LLC, 954 F.3d 970 (7th Cir. 2020).

Jurisprudence

Since 2020, Ohta has served as a judge on the San Diego Superior Court. In this role, Ohta presides over trial court matters in criminal, civil, family, and other state law matters. Ohta’s brief tenure does not reveal enough about her judicial philosophy.

Overall Assessment

There is little in Ohta’s background that is likely to cause controversy. As such, one can expect that she will likely be confirmed comfortably, likely in early 2022.

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Judge Linda Lopez – Nominee to the U.S. District Court for the Southern District of California

The U.S. District Court for the Southern District of California is facing a vacancy crisis, currently short seven judges. Having gotten to a slow start, the Biden Administration nominated its first two nominees to the Court a couple of weeks ago, including magistrate judge Linda Lopez.

Background

Linda Lopez was born in Miami and grew up in Hialeah, Florida in a Cuban American family. Lopez worked at small practice firms in Florida during and after high school and attended community college while working full time as a legal secretary and paralegal. Lopez was eventually able to transfer and graduate magna cum laude from Florida International University in 1996. Lopez then received a J.D. from the University of Miami Law School in 1999 and started work as a criminal defense attorney in Miami.

In 2007, Lopez moved to the Federal Defender’s Office for the Southern District of California. Lopez stayed with the office until her appointment in 2018 to become a U.S. Magistrate Judge on the Southern District of California.

History of the Seat

Lopez has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on December 31, 2017, by Judge Roger Benitez’s move to senior status.

On November 21, 2019, the Trump Administration nominated federal prosecutor Adam Braverman to fill this vacancy. However, Braverman never received a hearing before the Senate Judiciary Committee and his nomination was left unconfirmed at the end of the Trump Administration.

Legal Experience

Lopez started her legal career in Miami, practicing criminal defense both at a small firm and as a solo practitioner. She then spent eleven years at the Federal Defenders in San Diego, where she represented indigent defendants before the U.S. District Court for the Southern District of California and the Ninth Circuit.

Among the cases she handled in Miami, Lopez represented Wilfredo Rodriguez, who was convicted by a jury of a series of drug offenses. See United States v. Rodriguez, 159 F. App’x 900 (11th Cir. 2005). Lopez challenged the sentence on appeal, arguing that the district court erred by admitting co-conspirator statements and prior convictions in the sentencing. While the Eleventh Circuit found the issue to be a “close question” it ultimately found no error and affirmed. Id. at 902.

Among the prominent matters Lopez handled as a Federal Defender, she represented Sergio Caballero, accused of trafficking methamphetamine over the U.S.-Mexico border. Lopez challenged the introduction of evidence found on Caballero’s cellphone under the Fourth Amendment, but Judge Roger Benitez ruled that it was admissible under the border search doctrine. See United States v. Caballero, 178 F. Supp. 3d 1008 (S.D. Cal. 2016).

Jurisprudence

Since 2018, Lopez has served as a U.S. Magistrate Judge on the Southern District of California. In this role, Lopez presides over pretrial, trial, grand jury and discovery matters. Among the notable matters she has handled as a magistrate, Lopez was asked to rule over the enforcement of Drug Enforcement Administration subpoenas against the State of California seeking cannabis licenses, license applications, and shipping manifests. The State sought to quash the subpoenas, arguing that the DEA had failed to make the requisite showing of relevance. However, Lopez ruled against the state, ordering California to turn over the relevant records.

Overall Assessment

While several of Biden’s nominees with indigent defense backgrounds have drawn opposition, Lopez is less likely to draw opposition for a few reasons. Firstly, Lopez has experience as a magistrate judge and her record as a judge is fairly mainstream. Furthermore, she has little controversy throughout her career and has a compelling personal story of success. While this does not suggest that Lopez will not draw opposition (even the most uncontroversial nominees in the last year have drawn no votes from a sizable block of senators), it does indicate that Lopez is likely to see a swift and bipartisan confirmation.

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

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

Background

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

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

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

History of the Seat

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

Legal Experience

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

Munger Tolles and Olson

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

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

Governor Brown’s Office

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

Jurisprudence

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

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

Overall Assessment

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

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Judge Hernan Vera – Nominee to the U.S. District Court for the Central District of California

Judge Hernan D. Vera currently serves on the Los Angeles Superior Court, a popular source for California judicial nominees. While his time on the bench is fairly brief, his extensive tenure at the pro bono firm Public Counsel is likely to bring scrutiny in evaluating Vera’s nomination to the bench.

Background

Hernan D. Vera got a B.A. with Distinction from Stanford University in 1991, and a J.D. from U.C.L.A. School of Law in 1994. After graduating, Vera briefly joined the Los Angeles office of O’Melveny & Myers before clerking for Judge Consuelo Marshall on the U.S. District Court for the Central District of California. He then spent a year as a staff attorney at the Mexican American Legal Defense and Educational Fund (MALDEF) before returning to O’Melveny.

In 2002, Vera joined the public interest law firm Public Counsel and became President and CEO in 2008. In 2015, he moved to become a Principal at Bird Marella P.C.

In 2020, Vera was named by Gov. Gavin Newsom to the Los Angeles Superior Court, where he currently serves.

History of the Seat

Vera has been nominated to the U.S. District Court for the Central District of California to a seat vacated by Judge Margaret Morrow on October 29, 2015. Despite the seat opening with more than a year left in the Obama Administration, the Administration did not put a candidate forward to fill the vacancy.

In October 2018, the Trump Administration nominated Jeremy Rosen, a Los Angeles based appellate attorney and longtime member of the Federalist Society. However, Rosen’s nomination stalled due to the opposition of California Senators, and he was never confirmed.

Legal Experience

While he started his career in private practice, Vera spent a significant portion at the public-interest law firm, Public Counsel, where he served as President and CEO. Among the matters he handled there, Vera sued the Hollywood (CA) Presbytarian Medical Center for “dumping” a paraplegic homeless man on skid row. See Lawsuit Says Hospital ‘Dumped’ Homeless Man, Healthcare Risk Management, Mar. 1, 2008. Vera also sued the Pasadena school district to allow foster children in group homes to attend school. Jennifer English, Suit Brought Against Pasadena School District on Behalf of Foster Youth, City News Service, June 27, 2006.

Since 2015, Vera has been a Principal at Bird Marella, largely focusing on commercial litigation. For example, Vera represented Defendants in a private fraud and breach of fiduciary duty lawsuit in the Central District of California. See Tatung Co. v. Shu Tze Hsu, 217 F. Supp. 3d 1138 (C.D. Cal. 2016). Vera also represented a Charter School in challenging tax assessments that are not levied against public schools. Los Angeles Leadership Academy, Inc. v. Prang, 46 Cal. App. 5th 270 (2020).

Jurisprudence

Since 2020, Vera has served as a judge on the Los Angeles Superior Court. In this role, Vera presides over trial court matters in criminal, civil, family, and other state law matters. Vera’s brief tenure does not reveal enough about a judicial philosophy.

Writings and Statements

During his time at Public Counsel, Vera frequently wrote and spoke on the law. For example, in a 2012 column, Vera noted that the lack of comprehensive immigration reform leads to “rampant fraud” targeting immigrants. Hernan Vera, The Silent Casualties of Immigration Scams, Political Machine, May 18, 2012. He has also written in support of “access to justice” initiatives, noting that public interest lawyers perform an important role by offering free legal service to the underserved. See Hernan D. Vera, Closing Argument: Looking for Big Solutions For Access to Justice in California, 37 Los Angeles Lawyer 68 (November 2014).

Additionally, Vera advocated in favor of a Los Angeles ordinance against predatory lending, James K. Hahn, L.A. Council Expected to OK Predatory Measure, American Banker, Dec. 4, 2002, and against a ballot proposition that would narrow multiple-plaintiff lawsuits in California to class suits. Steve Lawrence, Targets of Unfair Competition Law Try to Make It Tougher to Use It, A.P. State & Local Wire, July 8, 2004.

In 2014, Vera awarded former First Lady and Secretary of State Hillary Clinton with Public Counsel’s William O. Douglas award, noting that Clinton “embodies the very highest American values of civic engagement and public service.” Hillary Rodham Clinton Signs Books, Receives Award During L.A. Visit, City News Service, June 19, 2014.

While at Bird Marella, Vera was critical of cooperation between the Los Angeles County Sheriff’s Department and ICE, stating: “…people should know that [the Sheriff’s Department is] working for them only, and not for Immigration and Customs Enforcement.” See City News Service, Inc., Watchdog Group Wants Sheriff’s Department to Freeze Out ICE, Nov. 16, 2018 (quoting Hernan Vera).

Overall Assessment

As a longtime public interest lawyer with extensive experience with commercial litigation as well, Vera would be able to hit the ground running as a trial judge. Nonetheless, his nomination is likely to attract opposition for his long history of civil rights litigation, as well as potentially over his praise of Hillary Clinton.

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David Urias – Nominee to the U.S. District Court for the District of New Mexico

Despite the confirmation of Margaret Strickland to the court, the District of New Mexico needs more judges, with a long pending Albuquerque vacancy from 2019 and a future Santa Fe based vacancy opening next year. The Biden Administration has nominated Albuquerque attorney David Urias to fill the latter seat.

Background

An Albuquerque native, David Herrera Urias received his B.A. from the University of New Mexico in 1997 and a J.D. from the University of New Mexico School of Law in 2001. Urias then clerked for Judge Vanessa Ruiz on the D.C. Court of Appeals and then worked as an Associate at Fried Frank in New York City for two years.

In 2004, Urias returned to New Mexico to work at the Mexican American Legal Defense and Educational Fund (MALDEF). In 2008, he became a Partner at Freedman Boyd Hollander Goldberg Urias & Ward P.A., where he currently works.

History of the Seat

Urias has been nominated for a future vacancy on the U.S. District Court for the District of New Mexico. This seat will open on January 1, 2022, when Judge Martha Vazquez takes senior status. This is a little unusual as there is a currently pending two-year-old Albuquerque based vacancy without a nominee, and Vazquez is based in Santa Fe.

Legal Career

While Urias started his career at the firm of Fried Frank, he made his name as a civil rights attorney in New Mexico. For example, while at MALDEF, Urias sued the U.S. Border Patrol on behalf of three undocumented students who were arrested while at high school. See Anna Macias Aguayo, Hispanic Group Sues Over Arrest of Teens at High School, A.P. State & Local Wire, May 25, 2005. He also sued Roger Barnett, a vigilante border watcher, for pointing guns at suspected undocumented individuals and for physically imprisoning and assaulting them. See Randal C. Archibold, Immigrant Groups Suing Vigilantes; Rights Groups Trying to Curb Armed Border Monitors By Going After Their Money, Pittsburgh Post-Gazette, Nov. 24, 2006. The suit ended in a mixed verdict, with the jury finding Barnett liable for assault and infliction of emotional distress, but found him not guilty of battery and false imprisonment. Arthur Rothstein, Jury: Rancher Didn’t Violate Migrants’ Rights, A.P. State & Local Wire, Feb. 18, 2009.

Urias also represented MALDEF in suing Otero County, New Mexico, for allegedly launching illegal deportation raids against the local Hispanic population. Alicia A. Caldwell, Civil Rights Groups Sue County Over Impromptu Immigration Raids, A.P. State & Local Wire, Oct. 17, 2007. The suit was ultimately settled after the Sheriff’s Department agreed to revise its Operational Procedures and to pay monetary damages to the families targeted.

Even after leaving MALDEF, Urias has been involved in a number of civil rights suits, including one against Gov. Susana Martinez’s attempt to crack down of undocumented immigrants getting driver’s licenses. See Marc Lacey, License Access in New Mexico is Heated Issue, N.Y. Times, Aug. 24, 2011. The suit resulted in a judge blocking Martinez’s plan for verification of licenses issued to immigrants. See Barry Massey, Judge Blocks NM Plan to Verify Immigrant Licenses, A.P., Sept. 1, 2011. Urias also sued the New Mexico government to block officials from withholding tax refunds from immigrants using an alternative tax identification number provided by the federal government. Morgan Lee, New Mexico Officials, Immigrants Clash Over Tax Returns, A.P. State & Local, Apr. 1, 2016. He also successfully obtained a court ruling allowing inmates to breast-feed their infants. Phaedra Haywood, Judge: Breast-Feed Ban in Prison Violates Constitution, Santa Fe New Mexican, July 1, 2017.

Political Activity

Urias has a few political contributions to his name, all to New Mexico Democrats totalling $600 over his entire career.

Statements

Urias has frequently, both in connection to his litigation and independently, spoken on the law. For example, Urias spoke against efforts by local officials to crack down on illegal immigration, arguing that this leads to those without documentation not wanting to call the police and leading to less safety. See Damien Cave, Local Officials Adopt New, Harder Tactics on Illegal Immigrants, N.Y. Times, June 9, 2008.

Overall Assessment

Having litigated in New Mexico state and federal courts for the past twenty years, Urias can be considered to be qualified for a federal district court seat. Nonetheless, he is likely to attract opposition based on his civil rights work, and his suits on behalf of immigrants.

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Judge Katherine Menendez – Nominee to the U.S. District Court for the District of Minnesota

U.S. Magistrate Judge Katherine Menendez, a former public defender, is the Biden Administration’s first nominee to the U.S. District Court for the District of Minnesota.

Background

Katherine Marie Menendez received a B.A. from the University of Chicago in 1993 and a J.D. from the New York University Law School in 1997.

After graduation, Menendez clerked for Judge Sam Ervin on the U.S. Court of Appeals for the Fourth Circuit. She then joined the Office of the Federal Defender for the District of Minnesota.

In 2016, Menendez was appointed to be a U.S. Magistrate Judge for the District of Minnesota, where she currently serves.

History of the Seat

Menendez has been nominated for a seat on the U.S. District Court for the District of Minnesota. This seat opened on October 15, 2019, when Judge Joan Ericksen moved to senior status. The Trump Administration did not put forward any nominee to fill this vacancy.

Legal Career

Menendez has spent her entire legal career before becoming a judge as a federal defender in the District of Minnesota. In this role, Menendez was appointed to represent indigent defendants in federal court, and handled a number of prominent cases. For example, Menendez argued before the Eighth Circuit that an airport police officer violated her client’s Fourth Amendment rights by picking up a suspicious package for a closer look. A unanimous panel of the Eighth Circuit disagreed and found no violation. United States v. DeMoss, 279 F.3d 632 (8th Cir. 2002).

Most notably, Menendez argued before the U.S. Supreme Court twice in Johnson v. United States, arguing that the possession of a sawed-off shotgun does not qualify as a violent felony under the Armed Career Criminal Act. After re-argument in the case, the Supreme Court struck down the Act’s residual clause, finding that it was unconstitutionally vague, siding with Menendez. Johnson v. United States, 526 Fed. Appx. 708 (2015).

In other matters, Menendez represented Justine Reisdorf, who was sentenced to five years in prison for running an online prostitution ring involving juveniles, and Zdenko Jakisa, a Bosnian man accused of concealing his involvement in crimes during the Bosnian war, including the killing of his Serbian neighbor.

Jurisprudence

Menendez has served as a U.S. Magistrate judge in Minnesota since her appointment in 2016. In this role, she handles settlement, discovery, and makes recommendations on dispositive motions. She also presides over cases where the parties consent.

Among the notable cases she handled, Menendez authored a Report and Recommendation finding that a Sudanese immigrant who was being held in ICE custody after a motor-vehicle theft conviction should receive habeas relief. See Bolus A.D. v. Sec’y of Homeland Security, 376 F. Supp. 3d 959 (D. Minn. 2019). Specifically, Menendez found that prolonged detention without a bond hearing violated the petitioner’s Due Process rights, and that the government had the burden to show by clear and convincing evidence that continued detention of the petitioner was warranted due to a danger to the community or risk of flight. Id. at 960. U.S. District Judge Wilhemina Wright adopted the first conclusion made by Menendez but reversed the second, finding that the Due Process Clause did not require the government to meet a particular standard of proof. Id. at 963.

In another case, Menendez authored a Report and Recommendation rejecting a challenge to a search warrant obtaining videos of the Defendant shooting a gun. See United States v. Eggerson, 999 F.3d 1121 (8th Cir. 2021). Judge Donovan Frank adopted the recommendation and a unanimous panel of the Eighth Circuit affirmed. Id. at 1127.

Writings

As a federal defender, Menendez has occasionally written on the law, primarily focused on federal criminal statutes. Shortly after the Johnson decision, Menendez drafted a law review article noting that the Supreme Court had “breathed new life” into the void for vagueness doctrine, and suggested that the Court could go further in striking down statutes that are unclear. See Katherine M. Menendez, Johnson v. United States Don’t Go Away, 31 Crim. Just. 12 (Spring 2016). Previously, Menendez discussed the impact of recent amendments to the sentencing guidelines, which were aimed at overturning the impact of Koon v. United States, which required departures from guidelines sentences to be evaluated based on abuse of discretion. See Katherine M. Menendez, De Novo Review of Sentencing Departures: The End of Koon v. United States, 27 Hamline L. Rev. 458 (Summer 2004).

Overall Assessment

With five years of experience as a magistrate judge and almost twenty as a public defender, and having argued twice before the U.S. Supreme Court, Menendez is likely to be deemed qualified for a seat on the federal bench. If and when she is confirmed, Menendez could likely be considered for any Minnesota vacancies that open on the Eighth Circuit.

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

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

Background

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

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

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

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

History of the Seat

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

Writings and Statements

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

Legal Experience

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

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

Jurisprudence

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

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

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

Overall Assessment

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

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Judge Jennifer L. Thurston – Nominee to the U.S. District Court for the Eastern District of California

The Eastern District of California is one of the most heavily overworked courts in the country. The Court has not been expanded in decades, even as caseloads explode, and has relied heavily on senior judges to carry the burden. With the court scheduled to be down to half its judgeships next year, President Biden has nominated Chief Magistrate Judge Jennifer Thurston to the Court.

Background

Thurston received her B.Sc. from California State University in 1989 and her J.D. in 1997 from the California Pacific School of Law. She then joined the Office of the County Counsel in Kern County.

In 2009, Thurston was appointed to be a U.S. Magistrate Judge for the Eastern District of California, where she currently serves as Chief Magistrate.

History of the Seat

Thurston has been nominated to the U.S. District Court for the Eastern District of California, to a seat vacated on February 2, 2020 by Judge Lawrence O’Neill. On June 18, 2020, the Trump Administration nominated Sacramento Superior Court Judge James Arguelles to replace O’Neill, but Arguelles was not confirmed before the end of the 116th Congress.

Legal Experience

Thurston spent her entire career before becoming a judge at the Office of the Kern County Counsel in Bakersfield. In this role, Thurston litigated child dependency proceedings, which sought to limit or terminate parental rights in cases of child abuse and neglect. See, e.g., In re Baby Boy H., 63 Cal. App. 4th 470 (1998). For example, Thurston represented the County on appeal challenging a trial judge’s ruling that step-siblings and other “legal” sibling relationships do not fall under the definition of siblings under California reunification law. See In re Tanyann W., 97 Cal. App. 4th 675 (2002). The California Court of Appeals, however, disagreed, finding that the term “sibling” should be given its ordinary meaning, referring to children with parents in common. See id. at 677.

In other matters, Thurston defended the County against a class action suit alleging that the Kern County Sheriff’s Department conducted strip and body cavity searches of prisoners. See Lopez v. Youngblood, 609 F. Supp. 2d 1125 (E.D. Cal. 2009).

Jurisprudence

Since 2009, Thurston has served as a U.S. Magistrate Judge. In this role, she presides by consent over civil matters and misdemeanors, assists district judges with discovery and settlement, and writes reports and recommendations on legal issues. Among the matters she handled on the bench, Thurston reversed an ALJ determination that a man with a seizure disorder and degenerative disc disease not disabled by law. See Terrezas v. Astrue, 726 F. Supp. 2d 1139 (E.D. Cal. 2010).

In other matters, Thurston granted a motion for summary adjudication in favor of an insurance company arguing that it had no duty to defend an employer from a state court suit brought by an employee who was impaled by a gate during his work. See Imperium Ins. Co. v. Unigard Ins. Co., 16 F. Supp. 3d 1 (E.D. Cal. 2014).

As with most district and magistrate judges, Thurston has had reversals of her decisions. One notable reversal was from her grant of summary judgment in favor of Kern County against a lawsuit by a prisoner alleging inappropriate conduct and sexual harassment from a corrections officer. See Vazquez v. City of Kern, 949 F.3d 1153 (9th Cir. 2020). In reversing, the Ninth Circuit found that the alleged conduct arose to the level of a Constitutional violation and that the officer was not entitled to qualified immunity. Id. at 1160.

Writings

In 2019, Thurston authored a law review article discussing the lack of diversity among the federal magistrate bench. See Jennifer L. Thurston, Black Robes, White Judges: The Lack of Diversity On the Magistrate Judge Bench, 82 Law & Contemp. Prob. 63 (2019). In the article, Thurston discusses the composition of magistrate judges across the country as well as the value of diversity on the bench, noting:

“…diversity does not assure fairness any more than a lack of diversity assures unfairness. The color of the judge’s skin, whether the judge grew up in poverty, sleeps with a person of the same gender, has a strong political identity, or regularly attends church, does not ensure that the judge will rule in favor of a litigant who has a similar background. To suggest otherwise sorely ignores judges’ commitment to the dictates of the law.” Id. at 70.

She goes on, however, to note that the differing perspectives offered by diversity can nonetheless cause an impact, noting studies indicating that the presence of female judges in cases involving sexual harassment do lead to more favorable outcomes for plaintiffs. See id. at 71. Thurston also notes that diversity is important in the sense that it lends “credibility” to the courts and affects the perception of the bench by those who appear before it. See id. at 72.

Overall Assessment

Having an uncontroversial background and extensive experience as a magistrate judge, Thurston should be a relatively mainstream choice for the federal bench. However, having written on diversity in the federal bench, some may attempt to equate Thurston’s writings to Justice Sotomayor’s then-maligned “wise Latina” comments, and suggest that she is arguing that minority judges rule differently or better than their white counterparts (although such a conclusion is hard to draw from reading the full context of her writing). However, the impact of such arguments is likely to be limited and Thurston is likely to be confirmed by the end of the year.

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Judge Maame Ewusi-Mensah Frimpong – Nominee to the U.S. District Court for the Central District of California

A longtime consumer protection attorney in private practice and at the Department of Justice, Judge Maame Ewusi-Mensah Frimpong has now been nominated for a seat on the federal bench.

Background

Born in Los Angeles to an immigrant family from Ghana, Frimpong got an B.A. from Harvard University in 1997, and a J.D. from Yale Law School in 2001. After graduating, Frimpong clerked for Judge Stephen Reinhardt on the U.S. Court of Appeals for the Ninth Circuit and then joined Morrison & Foerster as an associate.

In 2007, Frimpong joined the U.S. Department of Justice Civil Division, rising to become Principal Deputy Assistant Attorney General, working on consumer protection litigation.

In 2015, Frimpong was named by Gov. Jerry Brown to the Los Angeles County Superior Court, where she currently serves.

History of the Seat

Frimpong has been nominated to the U.S. District Court for the Central District of California to replace Judge Christina Snyder, who took senior status on November 23, 2016. The Trump Administration had previously nominated Judge Sandy Leal from the Orange County Superior Court to fill this seat, but Leal was never confirmed.

Legal Experience

While she started her career at the big law firm, Morrison & Foerster, Frimpong spent the most significant portion of her career litigating with the Department of Justice in a variety of capacities. For example, as Acting Deputy Assistant Attorney General for the Office of Consumer Protection Litigation, Frimpong helped assist with the prosecution of W. Scott Harkonen, the former CEO of Intermune, Inc. who was convicted of wire fraud for dissemination of false and misleading information.

During Frimpong’s tenure, the Second Circuit notably overturned a criminal conviction for promoting the off-label use of drugs, holding that such promotion of otherwise legal off-label use could not lead to criminal penalty. See United States v. Caronia, 703 F.3d 149 (2d Cir. 2012). Shortly after, the Fourth Circuit ruled that violations of FDA Good Manufacturing Practices regulations cannot be the basis for qui tam claims. United States ex rel. Rostholder v. Omnicare, 745 F.3d 694 (4th Cir. 2014). Despite the adverse decisions, Frimpong spoke before the 2013 CBI Pharmaceutical Compliance Congress, stating that cracking down on misbranding, adulteration, and off-label advertising was an essential part of consumer protection.

Jurisprudence

Since 2015, Frimpong has served as a judge on the Los Angeles County Superior Court. In this role, Frimpong presides over trial court matters in criminal, civil, family, and other state law matters. Among the matters that Frimpong has presided over, she ruled that a bail bondsman could not set aside the forfeiture of a bond after missing the deadline to file a motion to set aside the forfeiture, a ruling affirmed on appeal. See County of LA v. Lexington Nat. Ins. Corp., 2020 WL 830748 (Cal. App. Feb. 20, 2020).

Overall Assessment

Given her experience in private practice, the Department of Justice, and on the state court bench, Frimpong can certainly be deemed qualified for the federal bench. With little in her background that is likely to cause controversy, Frimpong will likely be confirmed by the end of the year.

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Judge Holly Thomas – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Los Angeles County Superior Court Judge Holly Thomas is, at 41, the youngest of the four nominees to the Ninth Circuit put forward by the Biden Administration. If confirmed, Thomas would likely be a strong future contender for elevation to the Supreme Court.

Background

Thomas received her B.A. with Honors and Distinction from Stanford University in 2000 and a J.D. from Yale Law School in 2004. After graduating from law school, Thomas clerked for Judge Kim McLane Wardlaw on the U.S. Court of Appeals for the Ninth Circuit.

After her clerkship, Thomas joined the NAACP Legal Defense and Educational Fund as assistant counsel. In 2010, Thomas moved to the U.S. Department of Justice Civil Rights Division as an appellate attorney. She left the Department in 2015 to join the New York Solicitor General’s Office.

In 2016, Thomas returned to California to work for the California Department of Fair Employment and Housing. In 2018, Thomas was nominated by Gov. Jerry Brown to the Los Angeles County Superior Court, where she currently serves.

History of the Seat

Thomas has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit. While the White House has not announced which seat Thomas is expected to fill on the Court, she may be nominated to replace Judge Richard Paez, who is the only Los Angeles-based judge on the Ninth Circuit taking senior status.

Legal Experience

Before joining the bench, Thomas worked primarily as a civil rights litigator. She started her career at the NAACP Legal Defense and Education Fund. At the fund, Thomas was part of the legal team that defended the University of Texas’ admissions policies, which used race as part of a variety of factors in college admissions. See Fisher v. Texas, 556 F. Supp. 2d 603 (W.D. Tex. 2008). The suit eventually ended in the Supreme Court, which upheld the policy. See id., 136 S. Ct. 2198 (2016).

From 2010 to 2015, Thomas worked for the Civil Rights Division in the U.S. Department of Justice. In this role, Thomas represented the United States in suing the Tucson School District over court supervision of a desegregation decree. Fisher v. Tucson Unified Sch. Dist., 652 F.3d 1131 (9th Cir. 2011). She also represented the government as amicus in support of female volleyball players suing Quinnipiac University for violations of Title IX. See Biediger v. Quinnipiac Univ., 691 F.3d 85 (2d Cir. 2012).

In 2015, Thomas left the Department of Justice to join the New York Solicitor General’s Office. During her time with that office, Thomas helped defend New York’s ban on assisted suicide. See Myers v. Schneiderman, 140 A.D.3d 51 (N.Y. App. Div. 2016). She also argued before the Second Circuit arguing that the Eighth Amendment complaint of a state prisoner should be dismissed for failure to exhaust administrative remedies (the Circuit, in an opinion by Judge Robert Katzmann, disagreed). Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016).

Jurisprudence

Since 2018, Thomas has served as a judge on the Los Angeles Superior Court. In this role, Thomas presides over trial court matters in criminal, civil, family, and other state law matters. Among the notable matters she has handled on the court, Thomas dismissed with prejudice a restraining order request by musician Elizabeth le Fey against her ex-boyfriend Sam France, finding that she had failed to disclose a prior restraining order against her by him on her application. Thomas’ ruling attracted criticism from some Los Angeles family lawyers, who noted that le Fey was proceeding without an attorney and that she had disclosed the restraining order in a different place on her application.

Overall Assessment

While Thomas doesn’t have a history of controversial statements, she is nonetheless likely to attract strong opposition for three reasons: first, her comparative youth; second, her history of work as a civil rights attorney; and third, her promise as a future SCOTUS candidate. Nonetheless, Thomas looks favored to win confirmation by the end of the year and to add a liberal voice to the Ninth Circuit.

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