Judge Michael Nachmanoff – Nominee to the U.S. District Court for the Eastern District of Virginia

A former federal defender and U.S. Magistrate Judge, Judge Michael Nachminoff is President Biden’s latest nominee to the U.S. District Court for the Eastern District of Virginia.

Background

A native of Arlington, Virginia Michael Stefan Nachmanoff received a B.A. from Wesleyan University in 1991 and then got a J.D. from the University of Virginia Law School in 1995.

After graduation, Nachmanoff clerked for Judge Leonie Brinkema on the U.S. District Court for the Eastern District of Virginia and then joined the firm of Cohen, Gettings & Dunham, P.C. as an associate. In 2002, Nachmanoff joined the Federal Defender’s Office for the Eastern District of Virginia and became Chief Public Defender in 2007.

In 2014, Nachmanoff was appointed as a U.S. Magistrate Judge in the Alexandria Division of the U.S. District Court for the Eastern District of Virginia. He continues to serve there today.

History of the Seat

Nachmanoff has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia. This seat opened on June 1, 2021, when Judge Anthony Trenga moved to senior status. Nachmanoff was recommended, along with federal prosecutor Patricia Giles, by Virginia Senators Mark Warner and Tim Kaine to White House for an earlier vacancy left by Judge Liam O’Grady. While Giles was nominated for that seat, Nachmanoff was tapped for the newer vacancy.

Legal Experience

While Nachmanoff did spend a few years in private practice early in his career, the bulk of his practice has been as a federal defender, where he represented indigent defendants in some of the most prominent prosecutions of the 21st century. Notably, Nachmanoff was part of the legal team for Zacarias Moussaoui, an Al Qaeda member charged with conspiracy to kill U.S. citizens. See Neil A. Lewis, Moussaoui Tells Court of Plan to Hijack 5th Jet; Surprise Testimony Seen Likely to Help Death Penalty Case Against Him, N.Y. Times, Mar. 28, 2006.

Nachmanoff also represented Zachary Chesser, a Fairfax man who was sentenced to 25 years for attempting to provide material support to a terrorist group and for threatening the lives of writers on South Park. See Warren Richey, American Jihadi Gets 25 Years for ‘South Park’ and Facebook Death Threats; Zachary Chesser of Virginia, Who Converted to a Militant Form of Islam, Had Pleaded Guilty to Three Charges, Including Threatening the Lives of ‘South Park’ Writers and Participants in ‘Everybody Draw Mohammed Day.’ Christian Science Monitor, Feb. 24, 2011.

Most notably, Nachmanoff argued before the U.S. Supreme Court in favor of a below-guidelines sentence imposed by Judge Raymond Jackson that the Fourth Circuit found was unreasonable. In a 7-2 opinion by Justice Ruth Bader Ginsburg, the Supreme Court agreed with Nachmanoff that the sentence was reasonable under the law. See Kimbrough v. United States, 552 U.S. 85 (2007).

Jurisprudence

Nachmanoff has served as a U.S. Magistrate Judge since 2015. In this capacity, Nachmanoff oversees discovery, adjudicates cases where jurisdiction is consented to, and presides over settlement. He also oversees pretrial detention, and granted bond in the amount of $1 million to Lev Parnas and Igor Furman, clients of Rudy Giuliani, charged with concealing foreign donations. Geoff Earle, Rudy Giuliani’s Ukraine Fixers Are Arrested Trying to Flee the U.S. Hours After Lunching With Him And Are Charged With Funneling $350K From Mystery Russian Businessman to Trump PAC – Then Pushing to Have Ambassador to Kiev Fired, MailOnline, Oct. 10, 2019.

Among other significant matters over which he presided, Nachmanoff sharply criticized Volkswagen, as well as counsel for a class of plaintiffs, for failing to resolve discovery issues expeditiously and for letting the matter sit on the court docket for two years without resolution. See Christopher Cole, Discovery Talk ‘Abysmally Failed’ in VW Suit, Judge Says, Law 360, June 28, 2021. Nachmanoff encouraged the parties to seek settlement, noting “This litigation has gone on too long and the only people who have benefited are the lawyers, if they’re collecting their fees.” See Nadia Dried, Va. Court ‘Shocked’ By Sluggish VW Pre-Production Car Fight, Law 360, Feb. 26, 2021 (quoting Judge Michael Nachmanoff). Nachmanoff also sanctioned the Fairfax County School Board for failing to preserve documents relevant to a lawsuit against them. See Matthew Barakat, Judge Sanctions School System in Sexual Misconduct Lawsuit, A.P., June 29, 2019.

Statements and Writings

In addition to his work on cases, Nachmanoff has both written and spoken on a number of issues in criminal law and procedure. For example, in 2012, Nachmanoff responded to a press release from the Transactional Records Access Clearinghouse (TRAC) noting wide sentencing disparities, criticizing the methodologies used by TRAC. Michael Nachminoff, TRAC Analysis of Variations in Sentencing Misses the Mark, 25 Fed. Sent. R. 18 (Oct. 2012). Similarly, Nachmanoff has spoken out against budget cuts to federal defender offices, see Ron Nixon, Public Defenders are Tightening Belts Because of Steep Federal Budget Cuts, N.Y. Times, Aug. 24, 2013, and against the staggering of harsh penalties by prosecutors to push defendants into plea deals. See Erik Eckholm, Prosecutors Draw Fire For Sentences Called Harsh, N.Y. Times, Dec. 6, 2013.

Nachmanoff has also testified before Congress on multiple occasions. In 2013, Nachmanoff spoke on the impact of sequestration related budget cuts before the Senate Judiciary Committee Subcommittee on Bankruptcy and the Courts. Similarly, in 2008, Nachmanoff testified in favor of efforts to reduce sentencing disparities between powder and crack cocaine before the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security.

Overall Assessment

Nachmanoff comes to the bench with extensive experience with both civil and criminal litigation, as well as a long history of advocating for the rights of the indigent. While his testimony, media statements, and articles will be scrutinized closely, ultimately, Nachmanoff is likely to get the support for confirmation.

Patricia Giles – Nominee to the U.S. District Court for the Eastern District of Virginia

In 2017, Virginia Senators Mark Warner and Tim Kaine recommended federal prosecutor Patricia Giles to be appointed to the U.S. District Court for the Eastern District of Virginia. However, she was not nominated. In 2018, they recommended her again. She was, again, not nominated. As such, when Giles was recommended for a judgeship in 2021, one wondered if Giles would be third time unlucky. As it happens, Giles’ co-recommendee, Judge Michael Nachmanoff, was nominated to the Eastern District. However, Giles was also picked for the court and looks poised to be confirmed with bipartisan support.

Background

Patricia Tolliver Giles received a B.A. from the University of Virginia in 1995 and then got a J.D. from University of Virginia Law School in 1998.

After graduation, Giles clerked for U.S. District Judge Gerald Bruce Lee on the U.S. District Court for the Eastern District of Virginia. She then spent three years as an Associate at Cooley Godward LLP before becoming a federal prosecutor with the U.S. Attorney’s Office for the Eastern District of Virginia. Giles is still with the office.

History of the Seat

Giles has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia. This seat opened on May 1, 2020, when Judge Liam O’Grady moved to senior status. No nomination was made by the Trump Administration to fill this vacancy, and in May 2021, Giles was recommended by Virginia Senators to fill the vacancy, alongside U.S. Magistrate Judge Michael Nachmanoff. Giles was nominated on June 30, 2021.

Legal Experience

Setting aside three years at Cooley, Giles has spent virtually her entire legal career as a federal prosecutor, working on a number of prominent cases.

In particular, Giles helped lead many prosecutions of figures in the MS-13 gang. For example, Giles prosecuted four MS-13 members charged with stabbing 17-year-old Brenda Paz to death. Paul Bradley, ‘I Did Not Kill Ms. Paz’ Eldest of Gang Members on Trial in Stabbing Death Testifies He Played No Role, Richmond Times Dispatch, May 5, 2005. Giles also prosecuted MS-13 member Yimmy Pineda-Penado of Alexandria, securing a 210 month sentence against him for child sex trafficking. MS-13 Clique Leader Sentenced to 210 Months for Child Sex Trafficking, U.S. Fed News, Dec. 14, 2012.

In other matters she worked on, Giles prosecuted Keith Reed, Stanley Winston, Anthony Cannon, and Tobias Dyer for a string of robberies in Northern Virginia. The defendants challenged their convictions on appeal, arguing that the government’s decision to offer cell phone maps at trial that attached their names as labels to individual cell phones violated their Confrontation Clause rights. The Fourth Circuit, however, upheld the convictions, finding any error harmless. United States v. Reed, 780 F.3d 260 (4th Cir. 2014).

Overall Assessment

President Biden’s judicial nominations team has attracted attention (and some criticism) for being strongly focused on appointing public defenders to the bench. As such, the appointment of Giles, a longtime federal prosecutor, can be considered a bit more “traditional.” This factor, combined with Giles’ experience with the courtroom and lack of a controversial background, should ensure strong bipartisan support for her nomination.

Judge Roderick Young – Nominee to the U.S. District Court for the Eastern District of Virginia

A former federal prosecutor and U.S. Magistrate Judge, Judge Roderick Young is Trump’s latest nominee to the U.S. District Court for the Eastern District of Virginia.

Background

A native Virginian, Roderick Charles Young was born in the majority-black city of Petersburg in 1966.  He received a B.A. from George Mason University in 1989 and then got a J.D. from West Virginia University College of Law in 1994.[1] 

After graduation, Young worked for two years in temporary legal work before becoming an Assistant Public Defender in Portsmouth.[2]  In 1998, Young became an Assistant Commonwealth’s Attorney for the City of Richmond.[3]  In 2002, Young became a federal prosecutor with the U.S. Attorney’s Office for the Eastern District of Virginia, where he became Deputy Criminal Supervisor in 2012.

In 2014, Young was appointed as a U.S. Magistrate Judge in the Richmond Division of the U.S. District Court for the Eastern District of Virginia.  He continues to serve there today.

History of the Seat

Young has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia.  This seat opened on August 1, 2019, when Judge Rebecca Beach Smith moved to senior status.  While recommending Young and fellow U.S. Magistrate Judge Douglas Miller for the vacancy, Virginia Senators Mark Warner and Tim Kaine, both Democrats, suggested that Smith’s replacement come from the Newport News Division of the court.[4]  Nonetheless, the White House chose the Richmond-based Young over the Peninsula-based Miller on May 6, 2020.

Legal Experience

While Young started his career doing temporary legal work, his first substantive role was in the Portsmouth Public Defenders’ Office.  Young then switched to the Commonwealth Attorney’s Office in Richmond, prosecuting felonies and misdemeanors in the City of Richmond.  Notably, while a prosecutor there, Young prosecuted and secured a conviction against John Matthew Grant Jr. for the shooting death of Shawn Battle.[5] 

From 2002 to 2014, Young was a federal prosecutor in the U.S. Attorney’s Office for the Eastern District of Virginia, where he focused on federal capital cases, organized crime, violent crime, and narcotics prosecutions.  Notably, Young prosecuted MS-13 leader Jose Bran, securing a term of life in prison against him.[6]

Jurisprudence

Young has served as a U.S. Magistrate Judge since 2014.  In this capacity, Young oversees discovery, adjudicates cases where jurisdiction is consented to, and presides over settlement.  In his time as a magistrate, Young has presided over 4 bench trials, and one full jury trial.  Notably, Young has presided over a number of civil rights cases, including obtaining successful settlements in a number of suits involving prisoners and police officers.[7]

Over his six years on the bench, Young’s rulings have been partially reversed by higher courts eight times.  Notably, one of those reversals was in Deutsch Bank Nat’l Tr. Co. v. Fegely, in which Young ruled that the defendant’s answer to the plaintiff’s pleadings was insufficient and that the plaintiff was entitled to judgment on the pleadings.[8]  The Fourth Circuit reversed, finding that the answer had denied factual allegations in the complaint, and that this was enough to defeat judgment on the pleadings.[9]

Overall Assessment

Given that Young has already been recommended by Virginia’s Democratic Senators and the White House, the biggest obstacle of his confirmation is the upcoming election and the rapidly shrinking Senate calendar.  At this point, while it’s an even money shot whether the Senate will process Young’s nomination, there are few substantive barriers to his confirmation.


[1] Sen. Comm. on the Judiciary, 116th Cong., Roderick C. Young Jr.: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. 

[4] Press Release, Office of Sen. Tim Kaine, Warner & Kaine Announce Eastern District of Virginia Judicial Recommendations (March 20, 2020) (available at https://www.kaine.senate.gov/press-releases/03/20/2020/warner-and-kaine-announce-eastern-district-of-virginia-judicial-recommendations).

[5] See Alan Cooper, 85 Years Given in Shooting; Man Has Addiction to Guns, Judge Says, Richmond Times Dispatch, Apr. 28, 1999.

[6] See United States v. Jose Bran et al., 776 F.3d 276 (4th Cir. 2015).

[7] See Canady v. Clarke et al., Civil Action No. 3:14CV420 (E.D. Va.); Howard v. Hunter, Civil Action No. 3:15CV461 (E.D. Va.); Quarles v. City of Colonial Heights et al., Civil Action No. 3:18CV593 (E.D. Va.).

[8] See 2018 WL 4524104 (E.D. va. July 11, 2018).

[9] See 767 F. App’x 582 (4th Cir. 2019).

Judge David Novak – Nominee to the U.S. District Court for the Eastern District of Virginia

Twelve years ago, a young prosecutor named David Novak was nominated to serve on the U.S. District Court for the Eastern District of Virginia, only to see his nomination stalled.  Today, Novak, now a federal magistrate judge, is getting a second shot at that court.

Background

David John Novak was born in Greensburg PA in 1961.  He received a B.S. magna cum laude from St. Vincent College in Latrobe PA in 1983 and then got a J.D. from Villanova University Law School in 1986.[1]

After graduation, Novak worked as an Assistant District Attorney at the Philadelphia District Attorney’s Office and then worked as a federal prosecutor in the U.S. Attorney’s Office for the Southern District of Texas.[2]  In 1994, Novak moved to the U.S. Attorney’s Office for the Eastern District of Virginia.[3]

In 2007, Novak was nominated by President George W. Bush for a seat on the U.S. District Court for the Eastern District of Virginia vacated by Judge Robert Payne.[4]  While Novak received a hearing before the Senate Judiciary Committee in 2008, his nomination was never approved by Committee and he was not confirmed before the end of the 110th Congress.  President Obama chose not to renominate Novak, instead choosing John Gibney, who was confirmed and serves today.

In 2012, Novak was appointed as a U.S. Magistrate Judge in the Richmond Division of the U.S. District Court for the Eastern District of Virginia.  He continues to serve there today.

History of the Seat

Novak has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia.  This seat opened on June 1, 2018, when Judge Henry Hudson moved to senior status.  While Novak originally applied for an Alexandria based vacancy that opened with Judge Gerald Lee’s retirement, he was not recommended for that seat and was instead supported by Virginia Senators Mark Warner and Tim Kaine, both Democrats, for the Richmond-based seat opened by Judge Hudson.  Novak was nominated on March 15, 2019.

Legal Experience

Novak spent virtually all of his career prior to taking the bench as a prosecutor, working first in Philadelphia, then in Houston, and finally in Richmond.  In Richmond, Novak became Chief of the Criminal Division in 2010, overseeing the criminal prosecutors under U.S. Attorney Neil McBride.

Most notably, Novak was the lead prosecutor against Zacarias Moussaoui, a French national who pleaded guilty of conspiring with Al Qaeda to kill American citizens in the September 11 attacks.[5]  On behalf of the Department of Justice, Novak presented evidence to the jury seeking the death penalty against Moussaoui.[6]  The case hit a hurdle when it was revealed that TSA Attorney Carla J. Martin had coached witnesses in violation of Judge Leonie Brinkema’s orders.[7]  Novak himself acknowledged the egrigiousness of Martin’s actions in court, which led Brinkema to impose a sanction against the government.  Ultimately, the jury decided not to impose the death penalty on Moussaoui, prompting the defendant to proclaim: “America, you lost; you lost, Novak. I won.”[8]

Jurisprudence

Novak has served as a U.S. Magistrate Judge since 2012.  In this capacity, Novak oversees discovery, adjudicates cases where jurisdiction is consented to, and presides over settlement.  In his time as a magistrate, Novak has presided over 7 bench and 3 jury trials.  Among his most significant trials, Novak presided over a negligence trial arising from a motorcyclist injured after being struck by an eighteen-wheeler.[9]

Over his seven years on the bench, Novak’s rulings have been partially reversed by higher courts six times.[10]  None of these reversals involve controversial issues or detail significant criticism of Novak’s reasoning.

Writings

In 1999, Novak authored an article[11] to provide guidance for federal prosecutors on handling death penalty cases.[12]  In the article, Novak outlines the various unique processes and issues that are raised in a capital case, including the notices issued by the Department of Justice, discovery, victim impact evidence, and voir dire.  Overall, Novak concludes that death penalty cases require “an enormous amount of preparation” and that prosecutors must “be dedicated to learning all aspects of the defendant’s life.”[13]

Political Activity

As a federal prosecutor, Novak occasionally donated to Republican candidates, including donations to U.S. Senator George Allen, N.Y.C.Mayor Rudolph Giuliani, and Rep. Eric Cantor.[16]

Overall Assessment

While Novak’s initial nomination to the federal bench stalled, his path to the federal bench looks much smoother this time around.  As Novak has already gotten the sign-off of Virginia’s Democratic senators, and given his impressive resume, it is more a question of when, rather than if, Novak will be confirmed.


[1] Sen. Comm. on the Judiciary, 115th Cong., David J. Novak Jr.: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. 

[4] Press Release, Warner and Webb Applaud Selection of Davis, Novak for Federal Judgeships (Office of Sens. Warner and Webb) (Nov. 15, 2007).

[5] Philip Sh and Benjamin Weiser, 2 Rival Legal Teams For ‘20th Hijacker’ Case, N.Y. Times, Dec. 18, 2001.

[6] Brooke A. Masters, U.S. Defends Its Moussaoui Stance, Wash. Post, May 11, 2002.

[7] Jerry Markon and Timothy Dwyer, Judge Halts Terror Trial, Wash. Post, Mar. 14, 2006.

[8] Neil A. Lewis, 911 Plotter Gets Life in Jail; Jury Swayed By Moussaoui’s Tough Childhood, Pittsburgh Post Gazette, May 4, 2006.

[9] Scott v. Watsontown Trucking Co., 920 F. Supp. 2d 644 (E.D. Va. 2013), aff’d, 553 F. App’x 259 (4th Cir. 2013).

[10] See Taylor v. Timepayment Corp., 2019 WL 1375594 (E.D. Va. Feb. 5, 2019); Testemark v. Berryhill, 736 F. App’x 395 (4th Cir. 2018); Parham v. Comm’r of Soc. Sec., 627 F. App’x 233 (4th Cir. 2015); Loving v. Astrue, 2012 WL 4329277 (E.D. Va. June 22, 2012); Fed. Nat’l Mortg. Assoc. v. CG Bellkor, LLC, 980 F. Supp. 2d 703 (E.D. Va. 2013); L. Foster Consulting, LLC v. XL Group, Inc., 2012 WL 2785904 (E.D. Va. June 1, 2012).

[11] The article was reviewed and incorporated feedback by then AUSA James Comey (who has since become famous for his tenure at the Department of Justice).

[12] David J. Novak, Trial Advocacy: Anatomy of a Federal Death Penalty Prosecution: A Primer for Prosecution, 50 S.C. L. Rev. 645 (Spring 1999).

[13] Id. at 677.

[14] Id. (quoting Judge Rossie Novak).

[15] Brad Kutner, Senator Don McEachin Talks LGBTQ Issues Ahead of the 2016 General Assembly Session, GayRVA, Aug. 26, 2015, http://www.gayrva.com/news-views/senator-don-mceachin-talks-lgbtq-issues-ahead-of-the-2016-general-assembly-session/.  

Judge Rossie Alston – Nominee to the U.S. District Court for the Eastern District of Virginia

Judge Rossie Alston, who currently serves on the Virginia Court of Appeals, has had his share of messy confirmation battles.  Three years ago, his confirmation to the Virginia Supreme Court was derailed by a power struggle between the Virginia legislature and Governor Terry McAuliffe.  This time around, his nomination to the U.S. District Court for the Eastern District of Virginia is likely to yield more success.

Background

Rossie David Alston Jr. was born in Washington D.C. on May 31, 1957.  He attended Averett College (now University) in Southern Virginia, graduating cum laude in 1979 and then received a J.D. from North Carolina Central University School of Law in 1982.[1]

After graduation, Alston worked as a Staff Attorney at the National Labor Relations Board and then joined the National Right to Work Legal Defense Foundation, where he worked for five years as a Staff Attorney.[2]  In 1992, Alston joined Smith, Hudson, Hammond and Alston in Manassas as a Name Partner.[3]

In 1998, Alston was appointed to the Juvenile & Domestic Relations Court in Prince William County.[4]  Three years later, he was selected to be a Circuit Court judge in Prince William County.[5]

In 2005, Alston applied for a vacancy on the U.S. District Court for the Eastern District of Virginia, but was not selected as the top candidate by the State Bar (who chose magistrate judge Liam O’Grady and litigator Anthony Trenga).[6]  Alston was still one of five candidates recommended for the seat by Virginia’s Republican Senators (O’Grady was ultimately chosen).[7]

In 2009, Alston was selected by the Virginia General Assembly to join the Virginia Court of Appeals, replacing Judge Jean Harrison Clements.[8]

In 2015, Alston was part of a tangle over a Supreme Court appointment between Gov. Terry McAuliffe and General Assembly leaders.  McAuliffe appointed Judge Jane Roush, a well-respected Fairfax County Judge, to the Virginia Supreme Court upon the recommendation of Del. Dave Albo, a Republican.[9]  However, Republican leaders in the Assembly protested the nomination, claiming that they were not adequately consulted, and instead announced plans to elevate Alston to the seat.[10]  After the Virginia House ignored Roush’s nomination and elected Alston, the Republican-controlled Senate rejected his nomination on a 20-20 tie after Republican Sen. John Watkins voted with all Democrats against Alston.[11]

Republicans tried to move Alston again after Watkins’ retirement, but Sen. Glen Sturtevant, who replaced Watkins, indicated his opposition to Alston.[12]  After two African American Democrats both reneged on deals to support Alston, Republicans dropped plans to elevate him, and his colleague, Judge Steven McCullough, was elevated instead.

Alston continues to serve on the Virginia Court of Appeals.

History of the Seat

Alston has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia.  This seat opened on September 30, 2017, when Judge Gerald Bruce Lee moved to senior status.  Virginia Senators Mark Warner and Tim Kaine, both Democrats, recommended Alston alongside federal prosecutor Patricia Giles in December 2017.[13]  Alston was nominated on June 18, 2018.[14]

Legal Experience

Alston started his legal career working as a labor attorney, first at the National Labor Relations Board and then at the National Right to Work Legal Foundation, a non-profit organization that seeks to counter union activities.  From 1989 to 1998, Alston worked in private practice, handling criminal defense, plaintiff’s side civil litigation, and domestic matters.

Some of the clients Alston represented include a woman charged with the death of a toddler scalded with hot bath water,[15] a teen who killed his stepfather to protect his mother from physical abuse,[16] and a driver convicted of reckless driving for participating in a road duel.[17]  Alston was also part of the legal team suing on behalf of the parents of a 13-month-old baby that fell through a window screen and sustained serious injuries.[18]  Alston was able to obtain a $15 million judgment, but the verdict was overturned on appeal.[19]

Jurisprudence

Alston has served as a judge in Virginia for approximately twenty years, starting as a Juvenile & Domestic Relations Judge in Prince William County in 1998, becoming a Circuit Court Judge in 2001, and being elected by the Virginia Assembly to the Court of Appeals in 2009.

Circuit Court Judge

From 2001 to 2009, Alston served as a Circuit Court Judge in Prince William County, where he presided over civil and criminal cases.[20]  On the Circuit Court, Alston developed a reputation for creative sentencing, including imposing “community service and symbolic jail time.”[21]  In one notable case, Alston presided over the trial of a community leader charged with leaving his toddler in a hot car.[22]  The jury found the father guilty and recommended 12 months in jail.[23]  However, Alston gave the father seven years of probation, ordering the father to spend his deceased daughter’s birthday in jail and donate blood on that day for the next seven years.[24]  In so ruling, Alston emphasized that the defendant “was a good man who loved his family and his church.”[25]

Court of Appeals

From 2009 onwards, Alston has served on the Virginia Court of Appeals, one level before the Virginia Supreme Court.  In his time on the court, Alston authored over 200 majority opinions, establishing a largely conservative record.  For example, Alston held, shortly after the Supreme Court legalized same-sex marriage in Obergefell, that cohabitation under Virginia law did not apply to same-sex couples, a decision that was reversed by the Virginia Supreme Court.[26]  In another case, Alston held that making an unsignaled left turn could be grounds for a valid traffic stop by a police car, even if there was no other traffic in the vicinity.[27]

Reversals

Over his twenty years on the bench, Alston’s rulings have been reversed by higher courts eleven times.[28]  Of these reversals, the most significant is in Luttrell v. Cuoco.[29]  Luttrell involved a ruling from a Fairfax judge that a man had to continue to pay alimony to his ex-wife even though his wife was now cohabiting with her female partner.[30]  Alston wrote for the Virginia Court of Appeals in holding that, under Virginia’s alimony law, cohabitation could only be between a man and a woman.[31]  The Virginia Supreme Court reversed, finding that a 1997 amendment expanded the definition of cohabitation to include same-sex couples.[32]

Interestingly, Alston has been reversed four times in cases where he ruled in favor of defendants or against law enforcement.[33]  In contrast, Alston has never had a conviction before him reversed and has only had a sentence before him reversed once.[34]

Writings or Comments

In his testimony as a nominee to the Virginia Supreme Court, Alston was asked if businesses should be permitted to turn away LGBT customers based on the business owner’s religious beliefs.[35]  Alston responded:

“There is no reason whatsoever why any person in the United States of America should be denied equal privileges that we all enjoy under the law.”[36]

Senator Don McEachin, a Virginia Democrat, interpreted Alston’s testimony as a rebuke to Virginia Republicans, who were then attempting to pass “religious liberty” laws that would permit such discrimination.[37]

Overall Assessment

While Alston’s elevation to the Virginia Supreme Court may have been entangled in politics, his path to the federal bench looks much smoother.  As Alston has already gotten the sign-off of Virginia’s Democratic senators, it is unlikely that his conservative-leaning jurisprudence would keep many Democrats from backing him.  As such, it is more a question of when, rather than if, Alston will be confirmed.


[1] Sen. Comm. on the Judiciary, 115th Cong., Rossie D. Alston Jr.: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id. 

[4] Leef Smith, Judge is Sworn In for Juvenile Court; Alston Takes Over Bench of the Late Patrick Molinari, Wash. Post, Oct. 10, 1998.

[5] See Alston, supra n. 1 at 2.

[6] Alan Cooper, Ney, Wetsel Backed by 4 Bars for VA Appeals Court, Virginia Lawyers Weekly, Dec. 26, 2005.

[7] Alan Cooper, U.S. Senators John W. Warner and George Allen Name Alexandria Federal Nominees, Virginia Lawyers Weekly, May 8, 2006.

[8] Alan Cooper, Alston Elected to Virginia Court of Appeals, Virginia Lawyers Weekly, Feb. 11, 2009.

[9] Peter Vieth, Va. GOP Leaders Favor Alston Over Roush for Supreme Court, Virginia Lawyers Weekly, Aug. 3, 2015.

[10] See id.

[11] BIDS, In Vote on SC Justice, GOP’s John Watkins Unites With Democrats, Legal Monitor Worldwide, Aug. 18, 2015.

[12] Jim Nolan, Sturtevant Backs Keeping Roush on Supreme Court, Richmond Times-Dispatch, Jan. 16, 2016, https://www.richmond.com/news/sturtevant-backs-keeping-roush-on-supreme-court/article_b67927be-51f5-5a98-ba90-35e4c60ff314.html.  

[13] Press Release, Office of Sen. Mark Warner, Warner & Kaine Recommend Two for Vacancy On U.S. District Court for the Eastern District of Virginia (Dec. 21, 2017) (available at https://www.warner.senate.gov/public/index.cfm/2017/12/warner-kaine-recommend-two-for-vacancy-on-u-s-district-court-for-the-eastern-district-of-virginia).  

[14] Press Release, White House, President Donald J. Trump Announces Fifteenth Wave of Judicial Candidates, Fourteenth Wave of United States Attorney Nominees, and Ninth Wave of United States Marshall Nominees (June 7, 2018) (on file at https://www.whitehouse.gov/the-press-office).  

[15] See Leef Smith, Autopsy: Girl’s Scalding Intentional, Wash. Post, July 11, 1998.

[16] Avis Thomas-Lister, Teen to be Tried as Juvenile in Stepfather’s Slaying; Pr. William Youth, 15, Testifies in Hearing He Feared Abuse of Mother, Siblings, Wash. Post, June 5, 1991.

[17] Leef Smith, Driver Sentenced in Road Duel That Nearly Killed Va. Child, Wash. Post, Apr. 5, 1997.

[18] Gamble v. Jeld-Wen Inc., No. 138861 (chancery), Fairfax Cnty. Circuit Court, 1997.

[19] Jeld-Win Inc. v. Gamble, 256 Va. 144 (1998).

[20] See Alston, supra n. 1 at 20.

[21] See Josh White, Father Should Go to Jail for Death, Va. Jury Says, Wash. Post, Dec. 5, 2002. 

[22] Commonwealth v. Kelly, No. CR05053304-00 (Cir. Ct. Feb. 21, 2003).

[23] See White, supra n. 21.

[24] Sean O’Driscoll, Father Receives Sentence for Death of Child, Irish Times, Feb. 22, 2003.

[25] See id.

[26] See Luttrell v. Cuoco, 2016 Va. LEXIS 57 (April 28, 2016).

[27] Deborah Elkins, Court Upholds Stop for No-Signal Turn, Virginia Lawyers Weekly, Mar. 6, 2015 (citing Wilson v. Commonwealth).

[28] See Commonwealth v. Wiggins, 2017 Va. Unpub. LEXIS 28 (Mar. 13, 2017) (reversing finding that possessing a loaded gun does not constitute felony child neglect); Cole v. Commonwealth, 2017 Va. LEXIS 162 (Nov. 16, 2017) (reversing finding that Court of Appeals did not possess the authority to decide pre-trial issues in appeal); Luttrell v. Cuoco, 2016 Va. LEXIS 57 (April 28, 2016) (holding that Virginia cohabitation statute includes same-sex couples); Commonwealth v. Quarles, 283 Va. 214 (2012) (reversing holding that investigating detective had impermissibly restarted communication after defendant requested counsel); Simms v. Ruby Tuesday, Inc., 281 Va. 114 (2011) (reaffirming validity of “horseplay doctrine”);  Royal Indem. Co. v. Tyco Fire Prods, LP, 281 Va. 157 (2011) (reversing ruling that statute of limitations precluded negligence claims); Commonwealth v. Andrews, 280 Va. 231 (2010) (reversing sentencing due to allowing improper victim testimony); Woods v. Mendez, 265 Va. 68 (2010) (reversing dismissal of claim for punitive damages); Ervin v. Commonwealth, 57 Va. App. 495 (2011) (en banc) (reversing panel decision that defendant did not exercise dominion and control over marijuana in his vehicle); Kapur v. Kapur, 2009 Va. App. LEXIS 234 (May 19, 2009) (reversing sanctions issued against husband in divorce case); Commonwealth v. Marek, 2003 Va. App. LEXIS 46 (Feb. 5, 2003) (reversing grant of motion to suppress).

[29]  2016 Va. LEXIS 57 (April 28, 2016).

[30] See id. See also Tom Jackman, Va. High Court Limits Spousal Support, Wash. Post, May 3, 2016.

[31] See Jackman, supra n. 31.

[32] Id.

[33]  See Commonwealth v. Wiggins, 2017 Va. Unpub. LEXIS 28 (Mar. 13, 2017); Commonwealth v. Quarles, 283 Va. 214 (2012); Ervin v. Commonwealth, 57 Va. App. 495 (2011) (en banc); Commonwealth v. Marek, 2003 Va. App. LEXIS 46 (Feb. 5, 2003).  

[34] See Commonwealth v. Andrews, 280 Va. 231 (2010).

[36] Id. (quoting Judge Rossie Alston).

[37] Brad Kutner, Senator Don McEachin Talks LGBTQ Issues Ahead of the 2016 General Assembly Session, GayRVA, Aug. 26, 2015, http://www.gayrva.com/news-views/senator-don-mceachin-talks-lgbtq-issues-ahead-of-the-2016-general-assembly-session/.