Having filled two vacancies on the U.S. District Court for the Eastern District of California, Biden is now seeking to fill the last with state judge Daniel Calabretta, who would be, if confirmed, the first LGBTQ judge on the Eastern District’s bench.

Background

Born Daniel Joe Powell, Calabretta received a B.A. from Princeton University in 2000 and a J.D. from the University of Chicago Law School in 2003. He then clerked for Judge William Fletcher on the U.S. Court of Appeals for the Ninth Circuit and then for Justice John Paul Stevens on the U.S. Supreme Court. His class on the Supreme Court that session included future federal judges Julius Richardson (Rehnquist) and Martha Pacold (Thomas). After his clerkships, Calabretta joined Munger, Tolles & Olson as an associate. In 2008, Calabretta joined the California Attorney General’s Office under Jerry Brown and then joined Brown’s gubernatorial staff in 2013.

In 2018, Brown named Calabretta to the Sacramento County Superior Court, where he has served since.

History of the Seat

Calabretta has been nominated to the U.S. District Court for the Eastern District of California, to a seat vacated on April 27, 2022 by Judge John Mendez.

Legal Experience

Calabretta started his legal career as a law clerk on the Ninth Circuit and the U.S. Supreme Court but then spent three years at Munger Tolles and Olson, a firm that has produced numerous federal judges, including Ninth Circuit Judges Paul Watford, John Owens, Michelle Freidland, Dan Collins, and Gabriel Sanchez, as well as Justice Brett Kavanaugh.

Calabretta subsequently spent five years at the California Attorney General’s Office. During that time, Calabretta represented the Attorney General’s office in the suit challenging California’s ban on same sex marriage. See Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011). He also represented the state in a lawsuit regarding the funding and construction of a state prison hospital. See Rich Saskal, Receiver Offers California Break In Prison Health Care Lawsuit, The Bond Buyer, Oct. 7, 2008. Calabretta also argued before the Ninth Circuit in this role, defending California’s practice of collecting DNA samples from those facing felony charges. See Paul Elias, Calif. AG Defends DNA Samples from Felony Arrestees, A.P. State & Local Wire, July 13, 2010.

Finally, Calabretta spent five years working for Governor Jerry Brown as deputy legal affairs secretary before his appointment to the bench.

Jurisprudence

Since 2018, Calabretta has served as a Superior Court judge in Sacramento County. In this role, she presides over civil, criminal, and domestic cases. Calabretta currently serves as presiding judge on the Juvenile Court.

Writings and Statements

While at Munger, Calabretta co-authored a regular column with fellow Munger lawyers and Supreme Court clerks Friedland (O’Connor), Jeff Bleich (Rehnquist), and Aimee Feinberg (Breyer) discussing the Supreme Court. For example, one column from 2007 discusses the lack of cameras at the Supreme Court, suggesting changes that the Court can take to be more accessible such as releasing oral argument recordings on the same day of the argument (the Supreme Court currently releases transcripts the same day and audio at the end of the week). See Jeff Bleich, Michelle Freidland, Aimee Feinberg, and Daniel Powell, Supreme Court Watch: A Court Without Cameras, 33 San Francisco Att’y 52 (Winter 2007).

In another column, the foursome discuss the jurisprudence of Justice John Paul Stevens, describing him as “independent and hard to categorize politically.” See Jeff Bleich, Michelle Freidland, Aimee Feinberg, and Daniel Powell, Supreme Court Watch: John Paul Stevens – An Independent Voice, 33 San Francisco Att’y 44 (Spring 2007).

In a notable column, the authors discuss Chief Justice Roberts’ commitment to precedent, noting: “In a series of high-profile decisions this term, the Court expressed continued respect for precedents while effectively overruling them or limiting them to their narrow facts.” Jeff Bleich, Michelle Freidland, Aimee Feinberg, and Daniel Powell, Supreme Court Watch: Stealth Overrulings – Overturning Precedent Without Saying So, 33 San Francisco Att’y 43 (Fall 2007). The column goes on to discuss a number of rulings that go against prior precedent, without expressly overruling them, including the Gonzales v. Carhart decision that upheld a ban on “partial-birth abortion” seven years after the Court overruled such a ban in Stenberg v. Carhart.

Overall Assessment

The Eastern District of California has consistently been one of the most overworked courts in the country, and one desperately in need of new judges. As such, Calabretta’s nomination is likely welcome news to the court’s judges. Furthermore, Calabretta brings to the job both lawyerly and judicial experience and would likely be deemed to be well qualified for the bench.

However, Calabretta’s biggest enemy in his confirmation this Congress is time. As he is on the agenda for a Judiciary hearing this week, he should be able to be confirmed before the end of the year. If he is not, his fate depends on the composition of the new Senate.

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.