Longtime public defender turned judge Amy Baggio is President Biden’s third nominee for the federal trial court in Oregon.

Background

Baggio received a B.A. cum laude from Wake Forest University in 1995 and a J.D. from Lewis & Clark Law School in 2001. After spending a year at the Portland Metropolitan Public Defender, Baggio joined the Office of the Federal Public Defender for the District of Oregon, starting as a research and writing attorney and then shifting to be a Assistant Federal Public Defender in 2005.

In 2013, Baggio left to start her own law practice. In 2019, Governor Kate Brown appointed Baggio to the Multnomah County Circuit Court.

History of the Seat

Baggio has been nominated for a seat on the U.S. District Court for the District of Oregon. This seat will open on August 21, 2024, when Judge Marco Hernandez moves to senior status. Baggio was among six candidates recommended to the White House by Oregon Senators in June 2023.

Legal Experience

Starting her career as a public defender at the state level, Baggio spent ten years at the Federal Public Defender’s Office. Among the cases she handled there, Baggio argued before the Ninth Circuit unsuccessfully that the crime of receiving child pornograpy includes an intent to distribute. See United States v. Olander, 572 F.3d 764 (9th Cir. 2009). Baggio also represented detainees at the U.S. Naval Base at Guantanamo Bay. See Gul v. Obama, 652 F.3d 12 (D.C. 2011). In addition, Baggio joined an amicus brief on behalf of the detainees in constitutional challenges to their detention. See Boumedine v. Bush, 476 F.3d 981 (D.C. Cir. 2007).

Between 2013 and 2019, Baggio served as a solo practitioner in Portland. During this time, Baggio represented co-defendants in the prosecution of Ammon Bundy after the 2016 occupation of the Malheur National Wildlife Refuge. See United States v. Bundy, 195 F. Supp. 3d 1170 (D. Ore. 2016).

Jurisprudence

Baggio has served as a Circuit Court Judge since 2019. In this role, she serves as a primary trial judge, supervising criminal and civil cases. In a notable decision later affirmed by the Oregon Court of Appeals, Baggio denied a motion to suppress, finding that exigent circumstances prompted by ongoing animal neglect justified officers.entering the defendant’s residence to seize her cat. See State v. Hsieh, 499 P.3d 142 (Or. App. 2021). In another notable decision, Baggio granted a writ of habeas corpus releasing a prisoner due to inadequate measures used to treat Covid-19 in the facility, which the Oregon Court of Appeals affirmed. See Lawson v. Cain, 524 P.3d 529 (Or. App. 2023).

Political Activity

Baggio has a limited donation history, consisting of a single donation to President Obama’s campaign in 2008.

Overall Assessment

Like many of Biden’s nominees, Baggio has extensive experience in indigent defense, ranging from the representation of detainees to those of right-wing militants in Oregon. Baggio’s history is likely to cause significant opposition through the confirmation process, although Baggio is still favored to be confirmed before the vacancy is expected to open.

Judge Mustafa Kasubhai made history in 2018 as the first Muslim-American on the federal bench (albeit not in a lifetime appointment). He has now been nominated to such a position by President Biden.

Background

Born in Reseda, California in 1970 to an Indian immigrant family, Mustafa Taher Kasubhai received a B.A. from the University of California, Berkeley in 1992 and a J.D. from the University of Oregon School of Law in 1996.

A year after graduation, Kasubhai opened his own law practice in Eugene, Oregon, which he maintained until being appointed to the Oregon Workers’ Compensation Board in 2003.

In 2007, Governor Ted Kulongoski appointed Kasubhai to the Lane County Circuit Court. In 2018, Kasubhai was chosen to be a U.S. Magistrate Judge with the U.S. District Court for the District of Oregon, where he currently serves.

History of the Seat

Kasubhai has been nominated for a seat on the U.S. District Court for the District of Oregon. This seat will open on December 29, 2023, when Judge Ann Aiken moves to senior status. Kasubhai was among six candidates recommended to the White House by Oregon Senators in June 2023.

Legal Experience

Kasubhai started his legal practice in Eugene Oregon in 1997 and maintained that practice until his appointment to the Oregon Board of Workers’ Compensation in 2003. His practice consisted largely of representing plaintiffs in workers’ compensation claims and in personal injury suits. In addition to a heavily administrative practice, Kasubhai also tried ten jury trials. Notably, Kasubhai represented the daughter of a decedent who died of carbon monoxide poisoning after the use of a propane heater in a tent. Kasubhai represented the plaintiffs in a 8-day jury trial which ended in a verdict for the plaintiff, which was subsequently affirmed on appeal. See Benjamin v. Walmart, 185 Or. App. 444 (2002). Kasubhai also represented a worker who cracked a tooth on an employer-provided snack in administrative proceedings and before the Oregon Court of Appeals. See Liberty Northwest Ins. Corp. v. Nichols, 186 Or. App. 664 (2002).

Jurisprudence

Kasubhai served as a Circuit Court Judge from 2007 to 2018. In this role, he served as a primary trial judge, supervising criminal and civil cases. In a notable decision later affirmed by the Oregon Court of Appeals, Kasubhai denied a motion to suppress, finding that the defendant, as a guest in the home being searched, lacked a privacy interest implicating the Fourth Amendment. See State v. Gonzalez, 292 Or. App. 342 (2018). In another notable decision, Kasubhai instructed a jury that drug use, drug dependence, and drug-induced psychosis did not constitute mental diseases or defects that affected the defendant’s culpability in murdering his girlfriend, which the Oregon Court of Appeals affirmed. See State v. Folks, 290 Or. App. 94 (2018).

Since 2018, Kasubhai has served as a federal magistrate judge for the U.S. District Court for the District of Oregon, in which role he handles pretrial release, discovery matters, as well as cases where parties consent to his jurisdiction. Among the notable cases he handled, parties consented to have him hear a “rule of reason” Sherman Act claim regarding a collective decision by Defendant neurologists to stop covering the Plaintiff’s calls. See Ireland, M.D. v. Bend Neurological Associates, et al., No. 6:16-cv-02054-MK, 2021 WL 1229937 (D. Or. Mar. 31, 2021). Kasubhai granted summary judgment to the Defendants on the claims, which was affirmed by the Ninth Circuit. See 2023 WL 2783240 (9th Cir. Apr. 5, 2023). In another decision pending on appeal, Kasubhai granted summary judgment in favor of a union, finding that its withdrawal of union fees from the plaintiff did not violate the First Amendment because it was not a state actor. See Cram v. Local 503 SEIU, 590 F. Supp. 3d 1330 (D. Or. 2022).

Political Activity

Kasubhai has a handful of political donations to his name, all to Democratic candidates.

Writings and Statements

Kasubhai has written and spoken frequently on the law, particularly in favor of greater diversity both on the bench in the legal community, with some of his expressed views being raised in criticism at his confirmation hearing. See also The Honorable Mustafa Kasubhai, Old Oregon, Autumn 2009 (available at https://scholarsbank.uoregon.edu/xmlui/bitstream/handle/1794/10018/OQ_Autumn09.pdf). However, Kasubhai’s writings extend back to his law student days, when he authored an article critical of state rape laws that required showings of force in order to criminalize rape, arguing that the laws should be based around consent (or lack thereof) demonstrated by the victim. See Mustafa T. Kasubhai, Destabilizing Power in Rape: Why Consent Theory in Rape Law is Turned On Its Head, 11 Wis. Women’s L.J. 37 (1996-1997) (available at https://api.law.wisc.edu/repository-pdf/uwlaw-library-repository-omekav3/original/03d50dd18ada15fb757ee7dce07c20df3c1172d1.pdf).

Overall Assessment

Reviewing Kasubhai’s judicial record reveals some contrast with the portrait painted by critics at his confirmation hearing. His rulings have largely been affirmed and do not reveal anything out of the judicial mainstream. Judge Michael Mosman, probably the most prominent conservative voice on the Oregon district court bench, has written in support of Kasubhai’s nomination. However, despite all of this, it is likely that Kasubhai’s nomination will prove controversial based on his past writings. Nonetheless, if Democrats buckled down, they likely could confirm Kasubhai in due course before Judge Aiken moved to senior status.

A trailblazer on the state bench, Justice Adrienne Nelson is poised to become the first African American woman on the Oregon federal bench.

Background

Born in Kansas City, Missouri, and raised in Arkansas, Nelson found her way into legal advocacy early, when her mother sued her school to permit Nelson to be the school’s valedictorian, instead of a white student with a lower GPA who was initially selected. See Eden Dawn, Meet Adrienne Nelson, the Second Black Female Judge in Oregon History, Portland Monthly, Sept. 13, 2017, https://www.pdxmonthly.com/news-and-city-life/2017/09/meet-adrienne-nelson-the-second-black-female-judge-in-oregon-history. Nelson subsequently graduated summa cum laude from the University of Arkansas in 1990 and got a J.D. from the University of Texas School of Law in 1993.

After graduation, Nelson moved to Portland, worked as a contract attorney and then as a public defender. After three years as a public defender, Nelson joined Bennett, Hardman, Morris & Kaplan LLP for five years and then joined Student Legal and Mediation Services.

In 2006, Governor Ted Kulongoski appointed Nelson to the Multnomah County Circuit Court. In 2018, Governor Kate Brown elevated Nelson to the Oregon Supreme Court, making her the first African American appellate judge in Oregon history. Nelson has served on the court since.

In 2011, while she was on the Multnomah County Circuit Court, Nelson was one of five candidates recommended by Oregon Senators Ron Wyden and Jeff Merkley to replace Judge Michael Hogan on the U.S. District Court for the District of Oregon. Wyden and Merkley Send Names of Five Finalists for Federal Judgeship to the White House, States News Service, Mar. 6, 2012. The Obama Administration chose one of Nelson’s Multnomah County colleagues, Judge Michael McShane, for nomination, and McShane was confirmed in 2013.

History of the Seat

Nelson has been nominated for a seat on the U.S. District Court for the District of Oregon. This seat opened on December 27, 2021, when Judge Michael Mosman moved to senior status.

Jurisprudence

Nelson served as a Circuit Court Judge from 2006 to 2018. In this role, she served as a primary trial judge, supervising criminal and civil cases. For example, Nelson acquitted Mary Jo Pullen-Hughes for the charge of phone harassment, finding that there was not enough evidence of her intent to harass. OR Woman Acquitted of Phone Harassment of Feds, A.P. State & Local Wire, Mar. 1, 2010. Some of Nelson’s rulings have been appealed to the Oregon Court of Appeals and the Oregon Supreme Court. For example, the Oregon Supreme Court affirmed a ruling by Nelson precluding psychological testimony at trial after plaintiffs failed to deliver the reports prepared by their psychological expert during discovery. See A.G. v. Guitron, 268 P.3d 589 (Ore. 2011).

In contrast, the Oregon Court of Appeals reversed Nelson’s denials of motions to suppress in a number of cases, finding, in one case, that Nelson erred in finding that the defendant had no constitutional privacy interest in actions in a public restroom. See State v. Holiday, 310 P.3d 1149 (Ore. App. 2013). See also State v. Adams, 185 P.3d 570 (Ore. App. 2008) (reversing conviction where officer unlawfully stopped defendant without reasonable suspicion); State v. Chambers, 203 P.3d 337 (Ore. App. 2008) (holding that an officer’s detention of defendant was not justified under the community caretaker exception to the Fourth Amendment).

Since 2018, Nelson has been a member of the Oregon Supreme Court, serving as the court’s first African American member. See Andrew Selsky, In a First, African-American Named to Oregon Supreme Court, A.P. State & Local, Jan. 3, 2018.

Writings and Statements

Nelson has frequently spoken on the law at various legal events and symposiums throughout the state, as well as discussing her own rise to the bench. See, e.g., Eden Dawn, Meet Adrienne Nelson, the Second Black Female Judge in Oregon History, Portland Monthly, Sept. 13, 2017, https://www.pdxmonthly.com/news-and-city-life/2017/09/meet-adrienne-nelson-the-second-black-female-judge-in-oregon-history. Nelson’s unique background has also drawn media attention, and Nelson has been speculated as a potential nominee for the Supreme Court and the Ninth Circuit. Compare Andrew Kragie, Meet the Possible Nominees for Justice Breyer’s Seat, Law360, Jan. 26, 2022 with Andrew Kragie, Biden Gets 1st Opening on 9th Circ. Thanks to Judge Graber, Law360, Feb. 16, 2021.

Overall Assessment

After being considered as a potential nominee for both the Ninth Circuit and the Supreme Court, Judge Adrienne Nelson has now been tapped for the district court in Oregon. Based on her time in the Oregon legal community, it will be difficult to deny Nelson’s credentials for the position.