District of Columbia

Sparkle Sooknanan – Nominee to the U.S. District Court for the District of Columbia

Department of Justice attorney Sparkle Sooknanan is the White House’s second nominee to replace Judge Florence Pan on the D.C. District Court.

Background

A native of Trinidad & Tobago, Sooknanan moved to New York City at age 16 to attend St. Francis College, graduating summa cum laude in 2002. Sooknanan subsequently got an M.B.A. with Distinction from Hofstra College in 2003 and then started work at HIP Health Plan. Sooknanan continued working there while studying in the evenings at Brooklyn Law School, getting a J.D. summa cum laude in 2010.

After graduating, Sooknanan clerked for Judge Eric Vitaliano on the U.S. District Court for the Eastern District of New York, Judge Guido Calabresi on the U.S. Court of Appeals for the Second Circuit and then for Justice Sonia Sotomayor on the U.S. Supreme Court. Sooknanan then joined Jones Day, becoming a Partner in 2020. Sookanan subsequently left Jones Day and joined the U.S. Department of Justice, where she currently serves as Principal Deputy Assistant Attorney General in the Civil Rights Division.

History of the Seat

Sooknanan was nominated, based on the recommendation of Delegate Eleanor Holmes Norton, to replace Judge Florence Pan, who was elevated to the D.C. Circuit on September 28, 2022. President Biden had previously nominated D.C. Superior Judge Todd Edelman to replace Pan, but despite being approved by the Judiciary Committee multiple times, Edelman never received a floor vote and his nomination was not resubmitted to the Senate in 2024.

Legal Experience

Sooknanan started her career in practice with a brief stint at the Department of Justice between her lower court clerkships and her clerkship with Sotomayor. During this time, Sooknanan had the opportunity to argue before the Ninth Circuit on a Federal Tort Claims Act case. See Dichter-Mad Family Partners, LLP v. United States, 709 F.3d 749 (9th Cir. 2013).

Between 2014 and 2020, Sooknanan practiced at the firm Jones Day. At Jones Day, Sooknanan was part of the legal team representing Everytown for Gun Safety as amici in a suit challenging Colorado’s background check laws. See Colorado Outfitters Ass’n v. Hickenlooper, 823 F.3d 537 (10th Cir. 2016). Sooknanan also represented defendants challenging their convictions relating to the illegal smuggling of drugs (now Judge Trevor McFadden was one of the attorneys representing the government on the suit). See United States v. Mosquera-Murillo, 902 F.3d 285 (D.C. Cir. 2018). One of Sooknanan’s most intensive cases from this time was her involvement in a multi-party litigation related to bonds issued by the Employee Retirement System of the Government of Puerto Rico. See In re Financial Oversight & Manage. Bd. of Puerto Rico, 914 F.3d 694 (1st Cir. 2019).

Notably, Sooknanan, alongside fellow former Supreme Court clerks Benjamin Mizer and Parker Rider-Longmaid, filed amicus briefs in support of the City of Charlottesville’s decision to remove Confederate statues. See City of Charlottesville v. Payne, 856 S.E.2d 203 (Va. 2021). The Virginia Supreme Court ultimately reversed a Circuit Court ruling putting the removal on hold. See id. However, due to Jones Day’s challenges to Pennsylvania election accommodations for the pandemic, Sooknanan resigned from Jones Day.

Since 2021, Sooknanan has been with the Department of Justice, most recently working with the Civil Rights Division.

Political Activity

Sooknanan has a limited political history, including donations to Secretary Hillary Clinton and Wisconsin Attorney General Josh Kaul.

Overall Assessment

While Sooknanan doesn’t have experience as a public defender as Edelman did, her nomination is likely to prove fairly controversial as well. Her resignation of Jones Day and her work at the Civil Rights Division is likely to draw strong conservative opposition. With an election approaching, it remains to be seen if Sooknanan will be muscled through while Democrats have the attendance to do so.

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Amir Ali – Nominee to the U.S. District Court for the District of Columbia

The Biden administration has tapped 39-year-old civil rights litigator Amir H. Ali for a lifetime appointment to the federal bench on the U.S. District Court for the District of Columbia. Ali is the fifth Muslim American nominated as an Article III judge by President Biden. Prior to the start of the Biden administration, there had never been a Muslim Article III judge in the history of the country.

Background    

Amir Ali immigrated to the United States of America, eventually becoming a naturalized citizen. He received a B.S.E. in Software Engineering from the University of Waterloo in Ontario, Canada in 2008 and his J.D., magna cum laude, from Harvard Law School in 2011. 

After graduating, Ali served as a law clerk for Judge Raymond C. Fisher on the U.S. Court of Appeals for the Ninth Circuit from 2011 to 2012 and Justice Marshall Rothstein on the Supreme Court of Canada from 2012 to 2013. Ali then joined Jenner & Block LLP in Washington, D.C. as an associate from 2013 to 2017. In 2018, he became Director of the Criminal Justice Appellate Clinic at Harvard Law School. Since 2021, he has been the President and Executive Director of the MacArthur Justice Center, overseeing the organization’s trial and appellate litigation. He replaced Locke Bowman, who served as Executive Director for almost 30 years.

Ali teaches at Harvard Law School, co-directing the law school’s Criminal Justice Appellate Clinic. He is a founding Board Member and Co-Chair of the nonprofit organization The Appellate Project.

History of the Seat

Ali has been nominated to replace Beryl Howell, who assumed senior status on February 1, 2024.​ Howell recently stepped down as chief judge of the court on March 16, 2023.

Legal Experience

Ali is a veteran litigator who has argued civil rights, racial justice and criminal defense cases at all levels in federal court. Ali has argued several major civil rights cases before the U.S. Supreme Court. In Welch v. United States (2016), Ali argued on behalf of Gregory Welch, who pleaded guilty to one count of being a felon in possession of a firearm in 2010 and had previously been convicted of three other felonies. The Armed Career Criminal Act enhanced the maximum sentence for a convicted felon from 10 years to a minimum of 15 years and a maximum of life imprisonment if the felon had three or more prior convictions for drug or violent felonies. Welch was subsequently sentenced to 15 years in prison. In the 2015 case Johnson v. United States, the United States Supreme Court ruled the Residual Clause of the Armed Career Criminal Act was unconstitutionally vague and a violation of due process. Ali represented Welch who filed a petition for certiorari resulting in a 7–1 decision the U.S. Supreme Court ruled that Johnson v. United States announced a substantive rule change and was thus retroactive with Justice Thomas being the lone dissenter.

In 2017, Ali filed a brief in Hawaii v. Trump challenging President Trump’s “Muslim ban” executive order. The brief asked for declaratory judgment and an injunction halting the order. Justice Sotomayor cited Ali’s brief in her dissenting opinion.

In 2018, Ali represented Gilberto Garza, Jr. in Garza v. Idaho before the United States Supreme Court. The case centered on two plea agreements Garza signed in 2015 which required him to waive his right to appeal. Garza then informed his trial counsel he wanted to appeal post sentencing, however his counsel declined to file a notice of appeal due to the waivers Garza signed. In a 6-3 decision, the court ruled in favor of the petitioner, reversing and remanding the case on the grounds that Garza’s trial counsel rendered ineffective assistance.

In 2018, the MacArthur Justice Center, in partnership with the Promise of Justice Initiative filed a petition for certiorari on behalf of Corey Williams in the U.S. Supreme Court. In 1998, Williams, who was an intellectually disabled 16-year-old child that had an IQ of 68, was accused and convicted of first-degree murder. Prosecutors sought the death penalty and Williams spent 20 years in Louisiana prison. In response to the petition to the U.S. Supreme Court, the Caddo Parish District Attorney’s Office agreed to the immediate release of Mr. Williams.

 In 2022, Ali represented Navy veteran Larry Thompson before the U.S. Supreme Court in Thompson v. Clark. Thompson’s sister-in-law called 911 to his Brooklyn, New York apartment, alleging he was sexually abusing his one-week-old child. Thompson refused to let police inside of his apartment without a search warrant. The four police officers dispatched to the apartment forced their way in, restrain Thompson who resisted and took him into custody for two days charging him with resisting arrest. After an investigation by law enforcement revealed no signs of child abuse, all charges were dismissed. Thompson filed suit against the four officers alleging they violated his Fourth Amendment rights.  The case was dismissed at the trial level and on appeal to the Second Circuit Court of Appeals due to existing precedent, requiring Thompson to show that he had been affirmatively found innocent of committing the crimes in question. Thompson filed a petition for a writ of certiorari and in a 6–3 opinion, the Supreme Court ruled Thompson was not required to show that he had been affirmatively exonerated of committing the alleged crime and, instead, “need only show that his prosecution ended without a conviction.”  

Ali worked with now U.S. Court of Appeals for the District of Columbia Circuit judge Bradley Garcia in a case raising important issues involving access to courts for indigent incarcerated people. Garcia took the lead on the case pro bono and Ali said of him he “litigated the hell out of it,”.

Ali is currently representing the mother of Ahmaud Arbery in a civil suit against the people responsible for the murder of her son. Arbery was a 25-year-old black man murdered while jogging in a neighborhood near Brunswick, Georgia on February 23, 2020.

Political Activity

Ali has numerous political contributions to his name. His donation recipients include President Joe Biden and Democrat candidates for both the Georgia and Texas House of Representatives.

Overall Assessment

Despite Ali not reaching his 40th birthday yet, he has a vast legal career with an extensive progressive pro bono portfolio. If confirmed, he could serve on the court for decades and likely will be on any Democrat president’s short list for elevation for the foreseeable future. Significant opposition from senate Republicans should be expected through the confirmation process. Senate Democrats (And possibly Vice President Harris) have the votes to confirm Ali if they can keep their caucus together with nearly a year left in President Biden’s term.

References

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Judge Loren AliKhan – Nominee to the U.S. District Court for the District of Columbia

D.C. Court of Appeals Judge Loren AliKhan has been tapped for a lifetime appointment to the federal bench. While AliKhan’s first Senate confirmation was relatively smooth, she will likely draw more opposition this time around.

Background

Born June 24, 1983, Loren Linn AliKhan graduated from Bard’s College at Simon’s Rock in 2003 and then received her J.D. from the Georgetown University Law Center in 2006.

After graduating, AliKhan clerked for Judge Louis Pollak on the U.S. District Court for the Eastern District of Pennsylvania and for Judge Thomas L. Ambro on the U.S. Court of Appeals for the Third Circuit before joining the Department of Justice as a Bristow Fellow in the Office of the Solicitor General. AliKhan then joined the Washington D.C. office of O’Melveny & Myers as an associate.

In 2013, AliKhan joined the D.C. Attorney General’s Office to work as Deputy Solicitor General. In 2018, she was appointed by Attorney General Karl Racine to be Solicitor General for the District of Columbia.

On September 30, 2021, AliKhan was nominated by President Biden to become a judge on the D.C. Court of Appeals (not to be confused with the U.S. Court of Appeals for the D.C. Circuit), replacing Judge John Fisher. AliKhan was confirmed to the position on February 8, 2022 by a 55-41 vote and has served on the D.C. Court of Appeals since February 18, 2022.

History of the Seat

The seat AliKhan has been nominated for opened on May 1, 2023 from Judge Amy Berman Jackson’s move to senior status.

Legal Experience

AliKhan started her legal career as a clerk to Judge Louis Pollak on the U.S. District Court for the Eastern District of Pennsylvania and then for Judge Thomas L. Ambro on the U.S. Court of Appeals for the Third Circuit. After a brief stint with the Solicitor General’s office, AliKhan joined O’Melveny & Myers, where she litigated primarily in federal court. Notably, AliKhan was part of the legal team representing a noncitizen challenging a determination that his convictions for simple drug possession constituted “aggravated felonies” that warranted adverse immigration consequences. See Carachuri-Rosado v. Holder, 560 U.S. 563 (2010). In that case, AliKhan and O’Melveny worked with the University of Houston Law Center alongside the primary petitioner’s counsel Sri Srinivasan (currently a judge on the U.S. Court of Appeals for the D.C. Circuit). Notably, AliKhan’s team was opposed by then-Solicitor General Elena Kagan (currently a Justice on the U.S. Supreme Court). The case ended with a unanimous ruling in favor of the petitioner. See id. AliKhan was also on the legal team representing Cheryl Perich, a teacher who successfully sought a judgment arguing that her religious employer had unlawfully fired her under federal antidiscrimination laws. See Hosanna-Tabor Evangelical v. EEOC, 565 U.S. 171 (2012). The Supreme Court ultimately sided in favor of the employer, finding that the ministerial exception to anti discrimination laws applies whenever an employer engages in hiring and firing of a “minister.” See id.

In 2013, AliKhan joined the D.C. Attorney General’s Office as Deputy Solicitor General. In this role, AliKhan was part of the legal team defending D.C.’s licensing requirements for tour guides within the city, which were struck down as violating the First Amendment. See Edwards v. District of Columbia, 755 F.3d 996 (D.C. Cir. 2014). Notably, AliKhan was part of the legal team defending against an unlawful arrest suit brought by partygoers who had been arrested for unlawful entry after being granted access by an individual who was not the property owner. See Wesby v. District of Columbia, 765 F.3d 13 (D.C. Cir. 2014). After the district court granted summary judgment to the plaintiffs and the D.C. Circuit affirmed 2-1, the Supreme Court unanimously reversed, finding that the arrests were supported by probable cause. See District of Columbia v. Wesby, 583 U.S. ___ (2018).

Additionally, as Deputy Solicitor General, AliKhan argued one case before the Supreme Court, arguing that a Title VII claim filed by a Department of Health code inspector was barred by the statute of limitations. See Artis v. District of Columbia, 583 U.S. ____ (2018). In a 5-4 ruling, the Supreme Court reversed a lower court dismissal and found that a tolling provision in federal law benefited the plaintiff. See id.

In 2018, AliKhan became Solicitor General for the District of Columbia. In this role, AliKhan frequently joined other Democratic Attorneys General and Solicitors General in impact litigation around the country. Notably, AliKhan joined California in challenging a Texas suit seeking invalidation of the Affordable Care Act. See California v. Texas, 593 U.S. ___ (2021). The suit ended with a 7-2 Supreme Court ruling finding that Texas lacked standing to challenge the ACA individual mandate. See id.

Judicial Experience

Since her confirmation in 2022, AliKhan has served as a Judge on the D.C. Court of Appeals, overseeing appeals from the D.C. Superior Court. In her tenure on the court, AliKhan has, so far, authored ten opinions for the court. Of these opinions, all of which were unanimous, two involved challenges to criminal convictions. In one case, AliKhan affirmed the defendant’s conviction for first degree sexual abuse. In the other, AliKhan reversed convictions for second-degree murder and possession of a firearm due to the erroneous admission of testimony from a previous trial, finding error in the determination that the witness was unavailable.

An additional three cases involved professional misconduct by attorneys. In each case, AliKhan affirmed the finding of misconduct, although she reduced the penalty in one suit from a 90-day suspension to a 30-day suspension.

Two other cases involved family law. In one case, AliKhan affirmed a lower court award of sanctions against a father who filed frivolous adoption petitions for his children in Washington D.C. when a West Virginia court had already awarded custody to the mother. In the other, AliKhan reversed a lower court denial of a grandfather’s petition to intervene in a custody case involving his granddaughter, finding that the proper standard had not been applied.

The final three cases are civil in nature. In the first, AliKhan wrote for the court in ordering the dismissal of a judgment as moot. In the second, AliKhan affirmed a breach of contract judgment against a tenant but reversed the calculation of damages and sent the case back for recalculation. In the final case, AliKhan reversed a lower court decision finding that a rent contract failed to set adequately detailed price terms to be enforceable.

Overall Assessment

At 39, AliKhan has a significant record of legal achievements, including a Supreme Court argument. However, her involvement in a number of controversial cases, including Hosanna-Tabor and California v. Texas is likely to draw scrutiny. While AliKhan attracted the votes of seven Republicans the first time around, her second round is likely to be more contentious.

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Judge Todd Edelman – Nominee to the U.S. District Court for the District of Columbia

In 2016, D.C. Superior Court Judge Todd Edelman was nominated for a federal judgeship on the U.S. District Court for the District of Columbia but was not processed by the Republican-controlled Senate. Today, Edelman faces a short window for confirmation before the end of the Congress.

Background

Born January 16, 1968 in St. Louis Missouri, Todd Eric Edelman graduated cum laude from the Yale University in 1990 and then received his J.D. from the N.Y.U. School of Law in 1994.

After graduating, Edelman clerked for Judge William Bryant on the U.S. District Court for the District of Columbia before joining the Georgetown University Law Center as a E. Barrett Prettyman Fellow. Edelman then joined the Public Defender Service for the District of Columbia.

In 2005, he joined Bredhoff & Kaiser PLLC and in 2008, became a visiting associate professor at the Georgetown University Law Center. He was appointed by President Obama to the D.C. Superior Court in 2010.

On April 28, 2016, Edelman was nominated by President Barack Obama to become a U.S. District Judge on the U.S. District Court for the District of Columbia, replacing Judge Richard Roberts. However, his nomination was not processed by the U.S. Senate, which was then under Republican control, and after President Donald Trump was elected, he filled the vacancy with Carl Nichols.

History of the Seat

The seat Edelman has been nominated for opens with the elevation of Judge Florence Pan to the U.S. Court of Appeals for the D.C. Circuit.

Legal Experience

Edelman started his legal career as a clerk to Judge William Bryant on the U.S. District Court for the District of Columbia. Edelman then spent two years at the Georgetown University Law Center, where he worked in their Criminal Justice Clinic.

Starting in 1997, Edelman spent eight years as a public defender in Washington D.C., representing indigent defendants in approximately 30 to 35 jury trials, among other proceedings. Notably, Edelman represented a defendant in his second murder trial in Washington D.C., which concluded with an acquittal on the primary charge of murder. See Benn v. United States, 978 A.2d 1257 (D.C. 2009) (reversing convictions on lesser offenses). He was also trial counsel for a defendant in an assault to commit murder case, in which he objected to the peremptory strikes of all black females from the venire under Batson v. Kentucky. See Robinson v. United States, 878 A.2d 1273 (D.C. 2005). A subsequent appeal led to a ruling of first impression reversing the conviction. See id.

Edelman entered private practice in 2005, working primarily on complex civil litigation. For example, Edelman represented a class of employees who had been forced to drop out of their company health plan due to a dramatic premium rise in a class action against their employer. See Fields v. Lyon Workspace Products et al., Case No. 1:07-cv-6894 (N.D. Ill.) (Lefkow, J.).

Judicial Experience

Since his confirmation in 2010, Edelman has served as a Judge on the D.C. Superior Court. He started his time in the court on the Civil docket, but has since served on the Domestic Violence and Criminal dockets as well.

Notably, while on the civil docket, Edelman presided over a contract dispute between the American Thoracic Society and the American Cancer Association, mediating the dispute to a settlement before trial. See American Thoracic Society v. American Cancer Association, 2009 CA 4543 (D.C. Super. Ct. Dec. 10, 2015). On the criminal side, he presided over the trial of a man alleged to be the “Petworth serial stabber”, which ended in the defendant’s acquittal of all charges. See United States v. Jones, 2013 CF3 10586 (D.C. Super. Ct. June 2, 2015).

Overall Assessment

In 2010, Todd Edelman was smoothly confirmed to the D.C. Superior Court. Subsequently, in 2016, his nomination to the federal bench stalled and remained unconfirmed. This time around, Edelman’s biggest enemy is the clock. With limited time on the Senate’s calendar before the end of the Congress, it remains unclear if Edelman’s nomination will receive a hearing in time. If he is not processed and control of the Senate flips in November, Edelman risks seeing a repeat of his 2016 nomination failure.

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Ana Reyes – Nominee to the U.S. District Court for the District of Columbia

Williams & Connolly Partner Ana Reyes, nominated for the federal district court in D.C., would be the first Hispanic woman and the first LGBTQ judge on the District of D.C.

Background

Born in Uruguay, Ana Reyes received her B.A. from Transylvania University in 1996 and then spent a year organizing against California Proposition 209 (which barred affirmative action in public employment) before joining Harvard Law School for her J.D.

After graduating, Reyes clerked for Judge Amalya Kearse on the U.S. Court of Appeals for the Second Circuit and then joined the D.C. office of Williams & Connolly, where she currently works as a Partner.

History of the Seat

The seat Reyes has been nominated for will open upon the move of Judge Colleen Kollar-Kotelly to senior status.

Legal Experience

Other than her position as a clerk, Reyes has spent her entire career at Williams & Connolly, where she works in civil litigation and arbitration. Reyes has notably worked on a number of international disputes, including representing Spain in a dispute over the withdrawal of economic incentives for renewable projects. See Clark Mindock, Spain Wins Pause of $66M Energy Investor Award, Law360, Apr. 1, 2021.

In other matters, Reyes was part of the legal team challenging the Trump Administration’s restrictions on refugees entering the United States through ports of entry. See O.A. v. Trump, 2018 U.S. Dist. LEXIS 242294 (D.D.C. Nov. 20, 2018); see also Court Strikes Down Trump Administration Policy Barring Refugees From Asylum, States News Service, Aug. 2, 2019. Reyes has also been active in asylum representation on a pro bono basis, including the representation of three African women fleeing genital mutilation in Guinea. See African Women Win Appeal to Deportation, Washington Informer, July 10, 2008.

Statements and Writings

In 2011, Reyes authored an article discussing her experiences working with a family that was seeking to escape torture and mutilation in their home country. See Ana C. Reyes, Representing Torture Victims and Other Asylum Seekers, 37 Litigation 23 (Summer 2011). Reyes closed the piece by noting that representing torture victims and asylum seekers was a way for lawyers “to fundamentally change lives.” Id. at 27.

Overall Assessment

While Reyes’ background in international arbitration and civil litigation is unlikely to draw much fire as a judicial nominee, some senators may look askance at her suits against the Trump Administration. As such, while Reyes is favored for the bench, she may nonetheless have a rocky road to confirmation.

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Jia Cobb – Nominee to the U.S. District Court for the District of Columbia

Relman Colfax Partner Jia Cobb, nominated for the federal district court in D.C., would come to the bench with extensive litigation experience on both the civil and the criminal side.

Background

Jia Cobb received her B.A. from Northwestern University in 2002 and then received her J.D. cum laude from Harvard Law School where she served as Coordinating Editor of the Harvard Law Review.

After graduating, Cobb clerked for Judge Diane Wood on the U.S. Court of Appeals for the Seventh Circuit and joined the Public Defender Service for the District of Columbia. In 2010, she became a Partner at Relman Colfax, where she practices civil litigation and civil rights law.

History of the Seat

The seat Cobb has been nominated for opened on April 3, 2021, with Judge Emmett Sullivan’s move to senior status. Cobb was recommended by House Delegate Eleanor Holmes Norton for the federal bench on March 25, 2021.

Legal Experience

Cobb started her legal career as a clerk to Judge Diane Wood on the U.S. Court of Appeals for the Seventh Circuit. She then shifted to the Public Defender Service in D.C., where she represented indigent defendants in D.C. Superior Court and in the federal courts. Among her clients there, Cobb represented Christopher Timmons, who was charged with bringing a grenade and additional weapons near the U.S. Capitol complex. In his defense, Timmons claimed that he wanted to assist the police in their functions.

For the past eleven years, Cobb has served as a Partner at Relman Colfax, where she has practiced civil rights and civil litigation. Among her notable matters at the firm, Cobb represented an African-American bartender fired from Redline bar in Washington D.C. in an employment discrimination suit. The suit ended in a $687,000 judgment against the bar by a jury.

Additionally, in 2021, Cobb led the filing of lawsuits against the County of Stafford, the City of Fredericksburg, the District of Columbia, and other governmental organizations for allegedly infringing upon the First and Fourteenth Amendment rights of Black Lives Matter protesters.

Statements and Writings

Throughout her career, Cobb has spoken out on issues of race, gender, and diversity, including from her college days. As a college sophomore at Northwestern, Cobb spoke as part of the school’s first conference on diversity on a panel on racial coverage at the Daily Northwestern. See Rebecca Orbach, Northwestern U. Holds School’s First Conference on Diversity, Daily Northwestern, Nov. 8, 1999. She also served on a committee reviewing the school’s University Sexual Assault Hearing and Appeals System. See Emily Bittner, Committee Reviews Northwestern U.’s Sexual Assault Hearing and Appeals System, Daily Northwestern, May 18, 2000. In another interview from college, Cobb noted that she wanted to speak for the disadvantaged to “honor[] those who have made sacrifices for her.” See Wailin Wong, DePaul Professor Praises King’s ‘Radical Legacy’ Despite Flaws, Daily Northwestern, Jan. 11, 2001.

Similarly, as a law student, Cobb co-authored a paper discussing the disparities in African Americans serving on law reviews. See Jia Cobb, Lauren Sudeall & Amanda Teo, Diversity on the Law Review, HARV. L. REC., May 2, 2005.

Overall Assessment

With an appellate clerkship, nearly two decades of criminal and civil litigation experience, and a lack of background in partisan politics, Cobb could be a fairly uncontroversial pick for the federal bench. However, she is likely to draw opposition primarily based on her work in criminal defense and civil rights, which opponents may argue reflects bias. She may also draw questions for her statements and writings on issues of race and diversity. Ultimately, as long as Democrats hold together, Cobb will likely be confirmed in due course.

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Judge Florence Pan – Nominee to the U.S. District Court for the District of Columbia

In 2016, D.C. Superior Court Judge Florence Pan became the first Asian woman tapped for the U.S. District Court for the District of Columbia.  Despite a favorable recommendation from the Republican-controlled Senate Judiciary Committee, Pan’s nomination was never confirmed.  Now, more than four years later, Pan has a second chance to join the federal bench.     

Background

Born in 1966, Florence Yu Pan graduated summa cum laude from the University of Pennsylvania in 1988 and then received her J.D. cum laude from Stanford Law School in 1993. 

After graduating, Pan clerked for Judge Michael Mukasey on the U.S. District Court for the Southern District of New York and for Judge Ralph Winter on the U.S. Court of Appeals for the D.C. Circuit before joining the Department of Justice as a Bristow Fellow in the Office of the Solicitor General.  Pan then worked in the Department of Treasury between 1998 and 1999.

In 1999, Pan became a federal prosecutor with the U.S. Attorney’s Office for the District of Columbia.  She stayed with the office until her appointment by President Obama to the D.C. Superior Court in 2009.  

On April 28, 2016, Pan was nominated by President Barack Obama to become a U.S. District Judge on the U.S. District Court for the District of Columbia, replacing Judge Reggie Walton.  However, her nomination was not confirmed by the U.S. Senate, which was then under Republican control, and after President Donald Trump was elected, he nominated Dabney Freidrich to fill the vacancy.

History of the Seat

The seat Pan has been nominated for will open upon the confirmation of Judge Ketanji Jackson to the U.S. Court of Appeals for the D.C. Circuit.  

Legal Experience

Pan started her legal career as a clerk to Judge Michael Mukasey on the U.S. District Court for the Southern District of New York and then for Judge Ralph Winter on the U.S. Court of Appeals for the Second Circuit.  Since then, Pan worked for the federal government until her appointment to the D.C. Superior Court, going from the Department of Justice to the Department of the Treasury to the U.S. Attorney’s Office.  During her tenure, Pan tried around forty cases, half of which were jury trials. 

Among the significant matters that she worked on, Pan argued before the en banc D.C. Circuit in support of the police partially unzipping the jacket of a suspect during a Terry stop. See U.S. v. Askew, 529 F.3d 1119 (D.C. Cir. 2008) (en banc).  The D.C. Circuit ruled against her on the issue, finding that the facts surrounding the stop did not create reasonable suspicion for unzipping the jacket. See id.

Pan also argued in front of the D.C. Court of Appeals in defending a conviction against a defendant alleging an insanity defense to killing her child. See McNeil v. United States, 933 A.2d 354 (D.C. 2007).  The D.C. Court of Appeals overturned the conviction, finding that the prosecutor below improperly used the defendant’s invocation of her Miranda rights to argue that she was sane. See id. at 369.

Judicial Experience

Since her confirmation in 2009, Pan has served as a Judge on the D.C. Superior Court.  She started her time in the court on a Felony docket, but has since served on the Family, Misdemeanor, and Civil dockets as well.     

While serving on the Felony docket, Pan presided over a number of prosecutions of violent offenders, frequently handing out significant sentences, including a 15-year-sentence for a man who assaulted a victim in LeDroit Park, a 12-year-sentence for a man who stabbed the victim in Southeast D.C., and a 60-year-sentence to Antwon Pitt, who sexually assaulted a woman in Southeast D.C. as part of two home invasions.  On the civil side, Pan dismissed a lawsuit filed by the Center for Inquiry against Walmart for selling homeopathic medicines.

In her twelve years on the bench, a handful of Pan’s rulings have been reversed by the D.C. Court of Appeals.  In two cases, Pan presided over convictions for assault with significant bodily injury that were reversed because the Court of Appeals found insufficient evidence of significant injury. Compare In re D.P., 122 A.3d 903 (D.C. 2015) with Quintanilla v. United States, 62 A.3d 1261 (D.C. 2013).  On the civil side, in 2020, the D.C. Court of Appeals reversed Pan’s decision not to award treble damages in a wage-and-hour suit, finding that she had no discretion not to award the damages. Sivaraman v. Guizzetti & Associates., 228 A.3d 1066 (D.C. 2020).

Political Activity

Pan made a $500 contribution to the Presidential Campaign of John Kerry in 2004, her only contribution of record.  

Overall Assessment

This will be the third time that Pan has faced the U.S. Senate. In 2009, she was confirmed unanimously by a Democratic-controlled Senate. In 2016, she was approved by a Republican-controlled Committee but ultimately did not receive a confirmation vote before the U.S. Senate. Today, with a relatively uncontroversial moderate-liberal record, Pan is favored for a bipartisan confirmation.

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Carl Nichols – Nominee for the U.S. District Court for the District of Columbia

Last year, the White House’s nomination of Matthew Petersen self-destructed during his Judiciary Committee hearing after an embarrassing exchange with Sen. John Kennedy (R-La.) revealed the nominee’s lack of courtroom experience.  In attempting to mitigate that issue, the White House’s next nominee to the seat has extensive litigation experience: Carl Nichols.

Background

Carl John Nichols was born in Rhinebeck, NY on June 25, 1970.  Nichols graduated cum laude from Dartmouth University in 1992 and then spent a year as a paralegal at McKenna & Kuneo in Washington D.C.[1]  He then attended the University of Chicago Law School, serving as Editor of the University of Chicago Law Review and graduating with high honors.[2]

After graduating, Nichols clerked for Judge Lawrence Silberman on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Clarence Thomas on the U.S. Supreme Court.  In the latter position, Nichols clerked alongside Solicitor General Noel Francisco, and federal appellate judges Sri Srinivasan, Stephanos Bibas, Raymond Kethledge, and John Owens.

After finishing up his clerkships, Nichols joined the D.C. office of Boies Schiller Flexner LLP as an associate.[3]  Four years later, he became a partner at the firm.  In 2005, Nichols left the firm to join the Department of Justice as Deputy Assistant Attorney General for the Civil Division, where he worked with future D.C. Circuit Judge Greg Katsas.[4]  Nichols became Principal Deputy Associate Attorney General in 2008.

In 2010, Nichols joined Wilmer Cutler Pickering Hale & Dorr LLP as a Partner.  He continues to serve in that role today.

History of the Seat

The seat Nichols has been nominated for opened on March 16, 2016, with Judge Richard Roberts’ move to early senior status.  Roberts, an appointee of President Clinton, claimed the move was based on health reasons, but many speculated that Roberts was actually motivated by a different reason: a civil rights suit filed against him based on his relationship (while a young prosecutor) with a key witness in the trial he was managing.[5]   On April 28, 2016, President Obama nominated D.C. Superior Court Judge Todd Edelman to the vacancy.  However, the Republican controlled Senate Judiciary Committee did not take any action on Edelman’s nomination, and it was returned to the President at the end of the 114th Congress.

On September 11, 2017, President Trump nominated Matthew Petersen, a Commissioner with the Federal Election Commission, to fill the vacancy.  Petersen was prominent as a Republican election lawyer, was close to White House Counsel Don McGahn, and initially looked slated for a swift confirmation.  However, during his confirmation hearing, Petersen faced a sharp series of questions from Sen. John Kennedy, revealing that the nominee had never tried a case, taken fewer than five depositions over his career, and could not identify basic legal concepts including the definition of a motion in limine.[6]  With the video of Petersen’s inability to answer going viral, Petersen quietly withdrew his nomination on December 18, 2017.[7]

On December 21, 2017, three days after Petersen withdrew, Nichols was contacted by the White House Counsel’s Office to gauge his interest in a federal judgeship.[8]  Nichols was interviewed by the White House on January 5, 2018 and was preliminarily selected as a nominee on February 12, 2018.[9]  Nichols was officially nominated on June 18, 2018.

Legal Experience

Nichols’s legal career can be broken down into three distinct periods for analysis: the first is from 1998-2005, where he worked as an associate and partner at Boies Schiller;  the second is from 2005-2009, where Nichols worked as a DOJ attorney; the final is from 2010-present, where Nichols has worked at WilmerHale.

From 1998 to 2005, Nichols worked in the D.C. office of Boies Schiller focusing on civil litigation.  For example, Nichols represented Philip Morris in defending against a Sherman Act suit brought by rival tobacco companies seeking damages based on Philip Morris’ retail marketing programs.[10]  Nichols successfully defended summary judgment in favor of Philip Morris at the district court and court of appeals levels.[11]

From 2005 to 2008, Nichols served as Deputy Assistant Attorney General for the Civil Division, supervising the Federal Programs Branch, which handled civil cases across the nation.  During his tenure, Nichols was responsible for handling lawsuits related to the warrantless wiretapping of Americans.  For example, Nichols argued that a lawsuit brought by the Electronic Frontier Foundation against AT&T should be dismissed for infringing on national security.[12]  In another case, Nichols sued Maine officials and Verizon to prevent the release of information related to Verizon’s participation in warrantless wiretapping.[13]

From 2008 to 2009, Nichols served as the Principal Deputy Associate Attorney General for the Civil Division, working directly under Assistant Attorney General Kevin McDonald.  In this role, Nichols helped supervise and run the entire Civil Division.[14]  During his tenure, the Democratic-controlled House of Representatives sued the White House to seek access to subpoenaed information regarding the dismissal of U.S. Attorneys.  Nichols defended against the suit in D.C. federal courts.  Ultimately, Judge John Bates ruled in favor of the House of Representatives, but the decision was stayed by the D.C. Circuit until the end of the Bush Presidency.

Since 2010, Nichols has been a partner at WilmerHale, working in the Government and Regulatory Litigation Group.  Notably, Nichols represented Florida Attorney General Bill McCollum in defending against a suit filed by Governor Rick Scott to invalidate Florida’s campaign finance laws.[15]  Nichols also represented the Association of California Egg Farmers in defending a California law banning the sale of eggs that do not conform to certain safety regulations.[16]

Political Activity

Nichols has an extensive record of political contributions to Republicans.  Since joining WilmerHale in 2010, Nichols has given almost $9000.[17]  Among the recipients included Sens. Rob Portman, Mike Lee, former Sen. Scott Brown, and Congressmen Darrell Issa and Liz Cheney.[18]  Additionally, Nichols served as a transition team advisor for the Romney-Ryan campaign in 2012.[19]

Overall Assessment

After Petersen, the White House is looking to ensure that no questions can be raised as to the next nominee’s qualifications.  By that standard, they have succeeded with Nichols.  Nichols has extensive litigation experience and has been described by former Clinton White House Official Jamie Gorelick as a “spectacular” nominee.[20]

This is not to say that Nichols will not face any controversy in his confirmation.  Nichols may face questions regarding his work at the Department of Justice, particularly focused on his involvement in defending warrantless wiretapping and in fighting the House suit against the White House.  While Nichols will argue that any controversial positions he took were solely those of the Department, senators will nonetheless probe his views of warrantless surveillance and the role of Congress in enforcing subpoenas.

As a bottom line, given Nichols’ extensive experience, he is likely to fare better than Petersen and will likely add a conservative voice to the D.C. bench.

[1] Sen. Comm. on the Judiciary, 115th Cong. Carl J. Nichols: Questionnaire for Judicial Nominees 1.

[2] See id. at 3.

[3] Id. at 2.

[4] Id.

[5] Ann E. Marimow, Chief Judge of the District’s Federal Court Retires as Lawsuit Accuses Him of Sexual Assault, Wash. Post, Mar. 16, 2016, https://www.washingtonpost.com/local/public-safety/chief-judge-of-the-districts-federal-court-retires/2016/03/16/2ff09bf0-ebc1-11e5-b0fd-073d5930a7b7_story.html?utm_term=.38886e556276.  

[6] See Brian Naylor, Video Shows Trump Judicial Nominee Unable to Answer Basic Questions of Law, Nat’l Pub. Radio, Dec. 15, 2017, https://www.npr.org/2017/12/15/571060681/video-shows-trump-judicial-nominee-unable-to-answer-basic-questions-of-law.  

[7] Lydia Wheeler, Trump Judicial Nominee Withdraws After Humiliating Hearing, The Hill, Dec. 18, 2018, http://thehill.com/homenews/administration/365455-trump-judicial-nominee-withdraws-after-humiliating-hearing.

[8] See Nichols, supra n. 1 at 32.

[9] See id.

[10] See RJ Reynolds Tobacco Co. v. Philip Morris USA, Inc., 67 Fed. Appx. 810 (4th Cir. 2003).

[11] See Perry, et al. v. Wyeth-Ayerst Laboratories Co., et al., No. 99-0089, Circuit Court of Jefferson County (Miss.) (Judge Pickard), Vadino, et al. v. American Home Products Corp., et al., No. MID-L-425-98, Superior Court, Middlesex County (N.J.) (Judge Corodemus).

[12] See Judge Rules EFF Can Keep Sealed Documents in Domestic Spying Lawsuit, San Jose Mercury News, May 17, 2006.

[13] Elbert Aul, U.S. Sues State, Verizon to Block NSA Revelations; Maine is the Third State Sued for Probing the Firm’s Alleged Role in Surveillance, Portland Press Herald, Aug. 22, 2006.

[14] See Nichols, supra n. 1 at 15.

[15] Scott v. Roberts, 612 F.3d 1279 (11th Cir. 2010).

[16] State of Missouri et al. v. Harris et al., 58 F. Supp. 3d 1059 (E.D. Cal. 2014).

[18] See id.

[19] See Nichols, supra n. 1 at 14.

[20] Zoe Tillman, Trump is Expected to Nominate a Seasoned Former Justice Official for a Judgeship After His First Pick Bombed, Buzzfeed News, Mar. 12, 2018, https://www.buzzfeednews.com/article/zoetillman/trump-is-expected-to-nominate-a-former-justice-department (quoting Jamie Gorelick).

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Matthew Petersen – Nominee to the U.S. District Court for the District of Columbia

A Commissioner at the Federal Election Commission (FEC), Matthew Petersen is the last of four Trump nominees to the U.S. District Court for the District of Columbia to come before the Senate Judiciary Committee.  While Petersen boasts extensive experience in election law, he may face pushback based on his tenure at the FEC.

Background

Matthew Spencer Petersen was born in Torrance, CA in 1970.  He matriculated at Utah State University in 1988 and then at Utah Valley University (then Utah Valley State College) in 1991, graduating with an A.S. with High Honors in 1996.  Petersen also matriculated at the University of Utah in 1993, transferring to Brigham Young University in 1994, and getting a B.A. magna cum laude in 1996.

Petersen then joined the University of Virginia School of Law, graduating in 1999.  After graduating, Petersen joined the Washington D.C. Office of Wiley Rein.

In 2002, Petersen was hired by the Republican majority on the Committee on House Administration as Majority Counsel.  He served in that capacity for three years, notwithstanding a short stint as Counsel to the Republican National Committee in late 2004.  In 2005, Petersen moved to the Senate to work as Chief Counsel for the Republicans on the Committee on Rules and Administration.

In 2008, Petersen was one of five new appointments to the FEC, a regulatory agency seeking to enforce campaign finance law.[1]  Specifically, Petersen was nominated to replace Hans Von Spakowsky, the controversial nominee previously recess-appointed to the Commission by President George W. Bush.[2]  While his term expired in 2011, Petersen continues to serve as a Republican representative on the Commission.

History of the Seat

The seat Petersen has been nominated for opened on March 16, 2016, with Judge Richard Roberts’ move to early senior status.  Roberts, an appointee of President Clinton, claimed the move was based on health reasons, but many speculated that Roberts was actually motivated by a different reason: a civil rights suit filed against him based on his relationship (while a young prosecutor) with a key witness in the trial he was managing.[3]   On April 28, 2016, President Obama nominated D.C. Superior Court Judge Todd Edelman to the vacancy.  However, the Republican controlled Senate Judiciary Committee did not take any action on Edelman’s nomination, and it was returned to the President at the end of the 114th Congress.

On May 20, 2017, Petersen was contacted by the White House Counsel’s Office to gauge his interest in an appointment to the U.S. District Court for the District of Columbia.  (Notably, the current White House Counsel Don McGahn served as a Republican member of the FEC alongside Petersen for five years.)  Petersen was formally nominated on September 11, 2017.

Legal Experience

Petersen has a relatively unusual background for a federal judicial nominee, having only spent three years working in litigation, and having spent significantly longer periods of time in legislative work and at the Federal Election Commission enforcing campaign finance laws.

Wiley Rein

Petersen’s litigation experience is limited to his time as an associate at Wiley Rein LLP where he served as an associate in the Election Law & Government Ethics practice group.[4]  In this capacity, Petersen represented corporations seeking to comply with campaign finance regulations, as well as candidates seeking to defend charges brought by the FEC.[5]

Capitol Hill

After leaving Wiley Rein, Petersen served as Majority Counsel on the House Committee on Administration.  In this role, Petersen served as a legal advisor to Chairman Robert Ney (R-OH), advising him on “legal and legislative matters relating to federal election and campaign finance laws.”[6]  He also worked on complaints submitted to the House Franking Commission, which regulates the use of official congressional mailings.  Notably, Petersen also helped draft the Help America Vote Act of 2002 (HAVA).

After a short stint at the RNC working to implement the HAVA during 2004 Presidential election, Petersen was hired by Sen. Trent Lott (R-MS) to serve as Chief Counsel for the Senate Committee on Administration.  In this capacity, Petersen notably worked on legislation merging the U.S. Capitol Police and the Library of Congress Police.[7]

Federal Election Commission

Petersen was confirmed to the FEC on June 24, 2008, as package deal of nominees that dramatically changed the Commission’s make-up.  Among his first acts on the FEC, Petersen joined with every other Commissioner in rejecting an effort by the Club for Growth (a conservative political group) to shorten disclosures on political advertisements.[8]

Early in Petersen’s tenure, the FEC drew criticism for a high number of 3-3 deadlocks, preventing enforcement action.[9]  Specifically, the Republican Commissioners, Petersen, Don McGahn[10], and Caroline Hunter, were criticized for voting as a bloc and “undercutting federal election law and its enforcement.”[11]  In one instance, Petersen, McGahn, and Hunter refused to support a proposed regulation governing corporate travel for lawmakers, forcing the adoption of a weaker rule that relaxed travel requirements for Senators.[12]  Petersen defended his actions in an op-ed, arguing that “an agency cannot include in regulation what was not enacted through legislation.”[13]  Petersen also wrote letters to the editor arguing that the proposed rule closely mirrored congressional intent,[14] and that the problem of FEC deadlocks is being exaggerated.[15]  Instead, Petersen argued, the focus of the Republican commissioners is on reducing “[r]ote enforcement of hyper-technical rules” as this “has an unfair impact on the inexperienced [candidate].”[16]

However, throughout Petersen’s tenure, the FEC continued to draw criticism for being ineffective and being unable to enforce the law, specifically due to the Republican Commissioner’s refusals to take enforcement actions.[17]  One article noted that since the appointments of Petersen, McGahn, and Hunter, the FEC’s rate of deadlocks had increased eightfold from 2% to 16%.[18]  Another article noted: “If you’ve been thinking of breaking federal election law, this would be an excellent time to do it, because the chance of being caught is close to nil.  There is no cop on the beat.”[19]  In response, Petersen, Hunter, and McGahn wrote:

“Aggressive enforcement in cases where the law is vague or complicated undermines the rule of law.  Few areas of the law demand more sensitivity to aggressive enforcement than those governing First Amendment-protected political speech.”

Ultimately, the FEC’s lack of enforcement drew a suit from the Campaign Legal Center, specifically challenging the lack of action against individuals alleged to be “straw donors” under the Federal Election Campaign Act.[20]  The situation drew a rare public rebuke from Democratic Commissioner Ann Ravel, who resigned from the FEC in March 2017, arguing that “[t]he ability of the commission to perform its role has deteriorated significantly.”[21]  In response, Republican Chairman Lee Goodman (who replaced McGahn in 2013) countered:

“the situation has indeed changed, but for the better.”[22]

Despite the controversy over the Republican bloc votes, Petersen has drawn positive reviews from Commissioners, with both Goodman and Commissioner Steven Walther, who vote in opposite blocs, praising him.[23]

Overall Assessment

So far, Trump’s appointments to the D.C. federal bench have not attracted much opposition.  Trump has already successfully appointed three judges with widespread bipartisan support.  Whether Petersen follows this trend or not depends on how senators evaluate his actions on the FEC.  Petersen’s critics will argue, as many watchdog groups have, that Petersen joined with other FEC Republicans to stymie agency enforcement and cripple campaign finance laws.  However, Petersen and his supporters will likely downplay FEC deadlocks as rare occurrences, and note that his votes were based on First Amendment concerns.  They will also likely note that many of Petersen’s votes against enforcement were in favor of Democratic candidates, and that, as such, he cannot be considered overly partisan.

Overall, given the Republican senate majority, it is unlikely that Petersen will face much trouble getting confirmed.  Ironically, his confirmation will further jeopardize the FEC’s effectiveness, leaving it with two out of six seats vacant.

[1] The Politico, Senate Confirms New FEC Commissioners, Ending Long Partisan Standoff, CBS News, June 24, 2008, https://www.cbsnews.com/news/senate-confirms-new-fec-commissioners-ending-long-partisan-standoff/.  

[2] Matthew Mosk, Candidates’ Fundraising Disputes May Be Heard, Wash. Post, May 23, 2008.

[3] Ann E. Marimow, Chief Judge of the District’s Federal Court Retires as Lawsuit Accuses Him of Sexual Assault, Wash. Post, Mar. 16, 2016, https://www.washingtonpost.com/local/public-safety/chief-judge-of-the-districts-federal-court-retires/2016/03/16/2ff09bf0-ebc1-11e5-b0fd-073d5930a7b7_story.html?utm_term=.38886e556276.  

[4] Petersen, Senate Judiciary Questionnaire 29, https://www.judiciary.senate.gov/imo/media/doc/Petersen%20SJQ.pdf.

[5] Id.

[6] Id. at 28.

[7] Id.

[8] Matthew Murray, FEC Rejects Club’s Bid to Tweak Disclosure Rules, RollCall, July 29, 2008.

[9] Matthew Murray, FEC Deadlocks on the Rise, RollCall, Apr. 6, 2009.

[10] McGahn currently serves as Trump’s White House Counsel, and has a significant role in selecting judicial nominees.

[11] Editorial, Obama’s FEC, RollCall, Dec. 2, 2009.

[12] See id.

[13] Matthew Petersen, FEC Implemented Congress’ Vision on Travel Rules, RollCall, Dec. 1, 2009.

[14] Matthew S. Petersen, Caroline S. Hunter, Donald F. McGahn, Travel Rules Follow the Law, Wash. Post, Dec. 7, 2009.

[15] Matthew S. Petersen, Caroline S. Hunter, Donald F. McGahn, Promoting Change, Not Paralysis, at the FEC, Wash. Post, June 19, 2009.

[16] See id.

[17] Craig Holman, Guest Observer, RollCall, March 14, 2011.

[18] Id.

[19] Dana Milbank, A Good Faith Effort to Break D.C. Gridlock, Wash. Post, Oct. 12, 2014.

[20] Press Release, The Campaign Legal Center, CLC, D21 Lawsuit Calling for FEC Enforcement Moves Forward (Mar. 29, 2017) (available at http://www.campaignlegalcenter.org/news/press-releases/clc-d21-lawsuit-calling-fec-enforcement-moves-forward).

[21] Eric Lichtblau, Democratic Member to Quit Election Commission, Setting Up Political Fight, N.Y. Times, Feb. 19, 2017, https://www.nytimes.com/2017/02/19/us/politics/fec-elections-ann-ravel-campaign-finance.html.

[22] Id.

[23] Dave Levinthal, Will Donald Trump Let the Federal Election Commission Rot, The Center for Public Intregrity, Sept. 14, 2017, https://www.publicintegrity.org/2017/09/08/21164/will-donald-trump-let-federal-election-commission-rot.

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Trevor McFadden – Nominee to the U.S. District Court for the District of Columbia

A longtime member of the Federalist Society, Trevor McFadden, in many ways, represents their ideal for a judicial candidate.  He is strongly conservative, young, and has excellent academic credentials.  Each of these points, conversely, is likely to draw Democratic opposition.

Background

Trevor Neil McFadden was born in Alexandria, VA in 1978.  After getting his B.A. from Wheaton College in Illinois, McFadden spent two years as an officer with the Fairfax County Police Department.  In 2006, McFadden graduated from the University of Virginia School of Law with the Order of the Coif, indicating superior academic performance.  McFadden then clerked for Judge Steven Colloton on the U.S. Court of Appeals for the Eighth Circuit.[1] 

After his clerkship, McFadden joined the Department of Justice, serving as Counsel for the Deputy Attorney General.  After the inauguration of the Obama Administration, McFadden joined the U.S. Attorney’s Office for the District of Columbia, serving as a prosecutor for four years.  During this time, he also served as a Part-time Deputy Sheriff for the Madison County Sheriff’s Office.

In 2013, McFadden left the U.S. Attorney’s Office to join the D.C. Office of Baker & McKenzie, LLP.  After the election of President Trump, McFadden rejoined the Department of Justice, this time as second in command at the Criminal Division.

McFadden has been a member of the Federalist Society since 2003.

History of the Seat

The seat McFadden has been nominated for opened on December 31, 2016, with Judge Richard Leon’s move to senior status.  On On March 2, 2017, McFadden was informed of the White House’s interest in naming him to the vacancy.  McFadden was formally nominated by President Trump on June 7.

Legal Experience

McFadden may be a couple of years shy of forty, but he has managed to accumulate an impressive breadth of legal work in that time.  While McFadden has taken on prominent policy roles in the Department of Justice, and has advised numerous corporations on compliance with federal law at Baker McKenzie, the bulk of his courtroom experience is from his stint as a federal prosecutor.

As an AUSA, McFadden worked primarily on prosecuting violent crimes.  For example, McFadden successfully prosecuted a man who assaulted and robbed a 78 year old dialysis patient, .[2]  McFadden also successfully defended the conviction of a defendant convicted of conspiring to distribute over a kilogram of PCP.[3]

Nevertheless, McFadden’s stint at the Criminal Division of the Department of Justice may draw more scrutiny.  In this role, McFadden serves as second in command to Acting Assistant Attorney General Kenneth Blanco.  McFadden may draw questions related to the recent charging memo released by Attorney General Jeff Sessions, calling on federal prosecutors to charge defendants with the strongest possible charges regardless of other factors.[4]  McFadden may also face questions as to his involvement with the Department’s efforts to crack down on sanctuary cities.

Political Activity

McFadden has been fairly active in the Republican party, having canvassed for GOP candidates since his high school days.  In his SJQ, McFadden notes that he has canvassed for President George W. Bush’s 2000 and 2004 campaigns, Mitt Romney’s 2012 campaign, and Rep. Tom Davis’ 1996 election campaign among others.

McFadden is also a supporter of President Trump, having donated $1000 to his election efforts, and being a vetter for his transition team.

Overall Assessment

As noted above, the young, conservative, and ambitious McFadden is likely to be a template for Trump nominees to the federal bench.  As such, Democrats are likely to look for reasons not to support his nomination.

Most of the objections that can be drawn to McFadden are based on process.  Unlike previous administrations, the Trump Administration declined to consult with D.C. Delegate Eleanor Holmes Norton in making federal court nominations.  McFadden has already drawn criticism from Norton for not being a D.C. resident.[5]  Furthermore, McFadden’s hearing, scheduled for the 28th of June, is moving forward without an ABA rating on his nomination.  Furthermore, McFadden’s 14-year long history with the Federalist Society is unlikely to be missed as well.  As such, expect a more difficult confirmation process for McFadden than his fellow D.C. nominees Friedrich and Kelly.

[1] Colloton himself is a former prosecutor and a shortlist candidate for a Supreme Court vacancy.

[2] See United States v. Brown, 2011-CF3-0160000 (D.C. Super. Ct.) (Judge Pan).

[3] United States v. Bell, 708 F.3d 223 (D.C. Cir. 2013).  

[4] See Matt Ford, Jeff Sessions Reinvogarates the Drug War, The Atlantic, May 12, 2017, https://www.theatlantic.com/politics/archive/2017/05/sessions-sentencing-memo/526029/.

[5] Press Release, Office of the MP Eleanor Holmes Norton, Norton Urges Senate Democrats to Question D.C. Federal Nominees on Residency, Familiarity with D.C., After White House Nominates Non-D.C. Residents for the U.S. District Court and U.S. Attorney for the District of Columbia (June 13, 2017).

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