In December 2022, Judge Paul Watford shocked the legal community by announcing that, at the age of 55, he was stepping off the prestigious U.S. Court of Appeals for the Ninth Circuit to return to private practice. The Biden Administration, however, has put forward a nomination fairly quickly, Judge Ana de Alba.

Background

Born Ana Isabel de Alba in 1979, the daughter of immigrant farmworkers, de Alba received her B.A. from the University of California Berkeley in 2002 and her J.D. in 2007 from the UC Berkeley School of Law. While a law student, de Alba worked with elementary and middle school students on mock trials. See Minerva Perez, Pupils Convene Court, Los Banos Enterprise, Mar. 30, 2007 After law school, de Alba joined Lang Richet & Patch PC. She also continued her work with mock trial. Thaddeus Miller, Mock Trial Enlightens View of Future for Los Banos Sixth-Graders, Los Banos Enterprise, Mar. 16, 2012. In 2018, de Alba was appointed to the Fresno County Superior Court by Governor Jerry Brown. On January 19, 2022, President Biden nominated de Alba to the U.S. District Court for the Eastern District of California. She was confirmed on June 21, 2022, and has served on the Eastern District since.

History of the Seat

de Alba has been nominated to the U.S. Court of Appeals for the Ninth Circuit, to a seat that will be vacated by the resignation of Judge Paul Watford on May 31, 2023.

Legal Experience

Other than a brief stint at the ACLU Immigrants Rights Project, de Alba spent her entire career before becoming a judge at Lang Richet & Patch PC. Among her work there, de Alba represented a credit union in a suit by borrowers alleging promissory fraud that went up to the California Supreme Court. See Riverisland Cold Storage Inc. v. Fresno-Madera Product, 55 Cal. 4th 1169 (Cal. 2013). The California Supreme Court overruled a prior ruling limiting the use of “parol evidence” (evidence of verbal or written agreements outside the language of a contract) in cases of promissory fraud. See id. at 1172. Additionally, while at the firm, de Alba received the Jack Berman Award of Achievement from the California Young Lawyers’ Association in 2012 for her pro bono work, including serving on the Board of Directors for Central California Legal Services, Inc. California Lawyers, Judges to Receive Awards for Legal Service and Excellence, Targeted News Service, Oct. 4, 2012.

Jurisprudence

State Court

Since 2018, de Alba has served as a Superior Court judge in Fresno County. In this role, she presides over civil, criminal, and domestic cases. Among the matters she handled on the bench, de Alba presided over a suit by the American Chemistry Council alleging that California had improperly listed SPF systems using methylene diphenyl diisocynates (MDI) as priority products for the state’s green chemistry program, restricting their commercial use. See Judge Questions Core ACC Claim in Suit Over DTSC Spray Foam Listing, Inside Cal/EPA, Jan. 15, 2021. de Alba ordered the delisting of the challenged products, while rejecting three other challenges. Judge Scraps California DTSC’s Spray Polyeurethane Foam Listing, Inside Cal/EPA, Apr. 2, 2021. California’s appeal of the ruling is currently pending. California Urges Appellate Court to Uphold Green Chemistry Product Listing, Inside Cal/EPA, Feb. 4, 2022.

Additionally, during the COVID-19 pandemic, de Alba gained some news attention for her rulings relating to scheduling and court compliance. In one ruling, de Alba refused to extend or excuse deadlines for a defendant’s community service, noting that she had seen no evidence that the defendant had worked towards the service before the pandemic hit. See Jeannette Parada, COVID-19 or No COVID-19, Fresno Judge Wants Defendant’s Community Service Done – Or It’s Jail, The People’s Vanguard of Davis, June 29, 2020. In another case, de Alba withdrew bench warrants that had been issued for defendants who failed to appear, noting that they did not have access to steady housing or transportation, and allowed them to participate virtually. See Phoebe Glick, Coronavirus Court Precautions Can Lead to Unforeseen Complications, The People’s Vanguard of Davis, Aug. 7, 2020.

In other rulings, de Alba found probable cause that a defendant had committed an act of domestic violence based on the testimony of the reporting officer. See Angelina Caplanis, Defender Argues Victim Lied on 911 Call; Judge Still Finds Probable Cause for Arrest, The People’s Vanguard of Davis, July 15, 2020.

Federal Court

Since her confirmation in June 2022, de Alba has served as a U.S. District Judge for the Eastern District of California. In this role, de Alba has handled both civil and criminal cases. Among the civil cases she has handled, de Alba adopted a magistrate’s recommendation and declined to grant summary judgment against a pro se civil rights plaintiff for failure to exhaust administrative remedies. See Tran v. Smith, Case No. 1:19-cv-00148-ADA-SAB (PC). de Alba also granted a plaintiff’s motion to amend a breach of contract lawsuit against the City of Fresno. See David Taub, Granite Park Operator Adds New Accusations in Lawsuit vs. City, Elected Leaders, GV Wire, Feb. 8, 2023, https://gvwire.com/2023/02/08/granite-park-operator-adds-new-accusations-in-lawsuit-vs-city-elected-leaders/.

In a notable dispute, defendants sought to have de Alba thrown off presiding over a wage theft class action suit brought against Anthony Vineyards, Inc., arguing that de Alba’s past legal work on behalf of farmworkers would render her biased. See Jane Mundy, California Ranch Operator Says Judge is Biased in Second Wage Theft Class Action, Lawyers and Settlements.com, Feb. 9, 2023, https://www.lawyersandsettlements.com/legal-news/california_labor_law/california-ranch-operator-says-judge-biased-in-second-wage-theft-23686.html. However, their motion was ultimately denied. See Jennifer Bennett, Judge’s Past Employment Work Not Disqualifying in Wage Case, Bloomberg Law, Feb. 22, 2023, https://news.bloomberglaw.com/litigation/judges-past-employment-law-work-not-disqualifying-in-wage-case.

It appears that only one of de Alba’s opinions has received appellate review in her short tenure. In the opinion in question, the Ninth Circuit affirmed de Alba’s revocation of a defendant’s supervised release and her sentence of nine months. See United States v. Martinez, No. 22-10274 (9th Cir. Apr. 26, 2023).

Overall Assessment

Last year, de Alba had a relatively comfortable confirmation process, with few questions being raised and three Republican senators crossing party lines to support her. Based largely on her relatively uncontroversial tenure on the district court, there is little reason that her elevation should be different. However, appellate nominations always carry more contention and the absence of Senator Dianne Feinstein may slow down de Alba’s nomination somewhat. Nonetheless, Democrats still have more votes today than they did when de Alba was first confirmed, and she is strongly favored to be confirmed comfortably.

University of Montana Law Professor Anthony Johnstone has spent his career engaging with the law, including serving as Montana Solicitor General under then Attorney General Steve Bullock.

Background

Anthony Devos Johnstone was born in 1973 in Minneapolis, Minnesota. Johnstone graduated from Yale University in 1995 and from the University of Chicago Law School in 1999 before joining the New York office of Cravath Swaine & Moore.

In 2004, Johnstone moved to Montana to join the Attorney General’s Office. In 2008, Johnstone was selected to be Montana’s State Solicitor, where he served until 2011.

Since 2011, Johnstone has served as a professor at the University of Montana Blewitt School of Law.

History of the Seat

Johnstone has been nominated for a future vacancy that will open upon his former boss Thomas’ move to senior status upon confirmation of a successor. Originally recommended for the vacancy by Sen. Jon Tester, Johnstone was nominated after interviews with Tester and Sen. Steve Daines and with the White House.

Legal Career

After clerking for Judge Sidney Runyan Thomas, Johnstone started his career at the New York office of Cravath Swaine & Moore.

From 2004 to 2008, Johnstone worked for the Montana Attorney General’s Office. In this role, he advised on the language of ballot initiatives, including a proposed initiative to ban same sex marriage. See Bob Anez, Gay Advocacy Group Attacks Same-sex Marriage Ban, A.P. State & Local Wire, Apr. 26, 2004. He also worked on advisory opinions, including one stating that county voters had the right to vote on closing a garbage incinerator. See Draft Opinion: Voters Have Right to Decide Fate of Incinerator, A.P. State & Local Wire, June 22, 2004. In this role, Johnstone also defended the constitutionality of prospective ballot measures in court. See, e.g., Matt Gouras, Another Legal Challenge to Spending Cap Heard Thursday, A.P. State & Local Wire, Sept. 14, 2006. Johnstone also argued before the Montana Supreme Court regarding misconduct by trustees for the art collection of Alberta Bair. See Susan Gallagher, State Supreme Court Weighs Fate of Museum on Montana Ranch, A.P. State & Local Wire, Nov. 1, 2007.

From 2008 to 2011, Johnstone worked as Montana’s State Solicitor, serving as Montana’s primary lawyer in court. In this role, Johnstone argued a number of cases before the Montana Supreme Court, including a ruling in which the Montana Supreme Court ruled that Montanans had the right to assisted suicide. See Baxter v. Montana, 2009 MT 449 (2009). Johnstone also argued that gay couples were not entitled to spousal benefits under state law because the statute limited them to married couples (gay marriage being banned in Montana at the time). See Matt Volz, Gay Couples Argue for Same Rights as Wedded People, A.P. State & Local Wire, Jan. 26, 2011.

Since 2011, Johnstone has served as a law professor, focusing on issues of constitutional law.

Writings

As a law professor, Johnstone has written and spoken extensively on the law. We cover some of the topics he has covered below.

Election Law and Campaign Finance

Election law is one of Johnstone’s expertises. He has testified before the Senate in support of campaign finance restrictions invalidated by the Supreme Court in its Citizens United decision. See Richard Hanners, Federal Judge Rules Against State Campaign Finance Limits, Hungry Horse News, Oct. 4, 2012. He also argue in favor of a resolution calling Citizens United wrongly decided at a debate between the American Constitution Society and the Federalist Society. See Resolved: Citizens United Was Wrongly Decided, US Official News, May 4, 2015. He has also written on the negative impact of Citizens United on judicial elections. See Anthony Johnstone, A Past and Future of Judicial Elections: The Case of Montana, 16 J. App. Prac. & Process 47 (Spring 2015).

Criminal Law

On the criminal side, Johnstone commented on whether the Constitution’s Speedy Trial right applies to sentencing as well as trial. See Matt Volz, U.S. Supreme Court Takes Up Speedy Trial Fight in Montana Case, A.P. State & Local, Mar. 24, 2016.

First Amendment

Johnstone has been critical of campus “free speech zones,” arguing that they necessarily imply that there are certain areas on campus where free speech was not protected. See Claire Shinner, Legislation Aims to Bolster Campus First Amendment Rights, Montana Kaimin: University of Montana, Feb. 23, 2021. Johnstone has also criticized legislative proposals that prevent the removal of students from groups for harassment, noting that they may prevent the university from enforcing its policies. See Mariah Thomas, Free-Speech Legislation Raises Discrimination Concerns, Montana Kaimin: University of Montana, Mar. 2, 2021.

Overall Assessment

Given the extensive nature of Johnstone’s writings and media comments, there is plenty for opponents to mine. Nonetheless, the bulk of his writings and legal experience makes Johnstone hard to pigeonhole as an ideologue. If Democrats hold the Senate, he will likely be confirmed comfortably.

A go-to election lawyer in Arizona (and frequent legal foe of Trump Ninth Circuit consideree Kory Langhofer), Roopali Desai has been tapped for the Ninth Circuit.

Background

Roopali Hardin Desai received a B.A. and an M.P.H. from the University of Arizona and then received a J.D. from the University of Arizona Law School in 2005. Desai then clerked for Judge Mary Schroeder on the U.S. Court of Appeals for the Ninth Circuit and then joined Lewis & Roca in Phoenix.

In 2007, Desai became a Partner at Coppersmith Brockelman, where she currently works.

History of the Seat

Desai has been nominated for an Arizona seat on the U.S. Court of Appeals for the Ninth Circuit. This seat opens when Judge Andrew Hurwitz moves to senior status, which he will go upon confirmation of a successor.

Political Activity

Desai is a frequent donor to Arizona Democrats, including Sen. Kyrsten Sinema, Rep. Greg Stanton, and Secretary of State Katie Hobbs.

Legal Experience

Desai has spent almost her entire legal career at the firm of Coppersmith and Brockelman, where she has made a name for herself as a go-to attorney for Arizona Democrats. Desai notably served as the campaign attorney for Sinema when she first ran for Congress in 2012. See Jeremy Duda, Arizona State Sen. Kyrsten Sinema Staffs Up Big and Early, Arizona Capitol Times, Jan. 3, 2012. In 2016, Desai represented the Arizona Democratic Legislative Campaign Committee in successfully challenging the presence of GOP Senate candidate Candace Begody-Begay. See Ben Giles, Judge Tosses Begody-Begay From Election Ballot, Arizona Capitol Times, June 24, 2016. Similarly, Desai represented the U.S. Green Party in seeking to remove a slate of alleged spoiler Green Party candidates being run by Republicans in an effort to shift close elections. See Jeremy Duda, Arizona Green Party Files Suit Over Alleged Sham Candidates, Arizona Capitol Times, Sept. 7, 2010. Outside of the election context, Desai has also represented the Coalition of Arizona Acupuncture Safety. See Gary Grado, Acupuncture: Dry Needling in Arizona, Arizona Capitol Times, Nov. 11, 2013.

A summary of her other key cases follows:

Mask Mandates

In 2021, Desai led the legal challenge against a statewide ban on mask mandates passed in Arizona and supported by Governor Doug Ducey. See Howard Fischer, Judge to Hear Arguments Over Legality of Mask Prohibition, Arizona Capitol Times, Aug. 25, 2021. Desai was able to convince the Arizona Supreme Court of her position, as the court unanimously struck down the provisions. See W. Schutsky, Ducey’s Judges Go Rogue, Arizona Capitol Times, Nov. 2, 2021.

2020 Election

Desai represented Arizona Secretary of State Katie Hobbs in defending against lawsuits challenging the validity of Arizona’s presidential election, which awarded Arizona’s electoral votes to President Joe Biden. See Howard Fischer, Judge Rejects GOP Official’s Effort to Void Election Won By Biden, Arizona Capitol Times, Dec. 6, 2020.

Voting Laws

Desai has frequently litigated against measures that restrict voting access. For example, she was part of the legal team unsuccessfully fighting an Arizona bill that restricted ballot collection. See Feldman v. Reagan, 843 F.3d 366 (9th Cir. 2016) (en banc).

Redistricting

In 2010, Desai represented a commissioner on Arizona’s Independent Redistricting Commission in defending the Commission’s actions in a suit where opposing counsel included future Arizona Supreme Court Justice Bill Montgomery. See State ex rel. Montgomery v. Mathis, 231 Ariz. 103 (Ariz. App. 2012).

Labor Law

In 2013, Desai was part of a legal team that secured a ruling against newly passed Arizona statutes that limited the ability of labor unions to engage in picketing and in using payroll deductions for political speech. See United Food & Commer. Workers Local 99 v. Bennett, 934 F. Supp. 2d 1167 (D. Ariz. 2013).

School Vouchers

In 2018, Desai represented Save Our Schools Arizona, a group opposing school vouchers in promoting an initiative blocking voucher expansion. Katie Campbell, Voucher Expansion Ballot Measure Prompts Questions on Voter Protection, Arizona Capitol Times, Sept. 15, 2017.

Marijuana

In the 2020 campaign cycle, Desai represented the Arizona Dispensaries Association in advising it on a legalization campaign. See Hank Stephenson, Pro-Pot Crew Shaping Up, Initiative Not So Much, Yellow Sheet Report, Mar. 20, 2019.

Writings and Statements

As a law student, Desai authored a note analyzing the Arizona Supreme Court’s decision in State v. Minnitt. Roopali H. Desai, State v. Minnitt: Extending Double Jeopardy Protections in the Context of Prosecutorial Misconduct, 46 Ariz. L. Rev. 415 (Summer 2004). In the article, Desai favorably compares Minnitt, which bars retrial when a mistrial was caused by prosecutorial misconduct that was later discovered, with the rule in federal cases, noting that Minnitt “makes clear that a prosecutor cannot avoid the double jeopardy ramifications of his own misconduct by simply concealing that misconduct until a trial is complete.” Id. at 422.

Overall Assessment

As a young nominee with a willingness to engage in bare knuckles litigation on behalf of liberal causes, Desai is likely to attract a fair amount of opposition. However, she has the strong support of Sinema, which will likely smooth her path to confirmation.

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

Background

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

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

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

History of the Seat

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

Legal Experience

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

Munger Tolles and Olson

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

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

Governor Brown’s Office

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

Jurisprudence

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

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

Overall Assessment

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

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

Background

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

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

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

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

History of the Seat

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

Writings and Statements

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

Legal Experience

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

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

Jurisprudence

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

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

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

Overall Assessment

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

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

Background

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

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

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

History of the Seat

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

Legal Experience

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

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

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

Jurisprudence

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

Overall Assessment

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

Labor-side attorneys aren’t commonly selected for the federal bench, even by past Democratic Administrations. As such, the nomination of Jennifer Sung, who has spent her entire career representing unions and workers’ rights organizations, to the Ninth Circuit is particularly notable.

Background

Jennifer Sung received her B.A. from Oberlin College in 1994 and then spent three years working as a labor organizer for the Service Employees International Union Local 74. She then spent three years as an organizer with the Service Employees International Union Local 1199 before joining Yale Law School. After graduating, Sung clerked for Judge Betty Binns Fletcher on the U.S. Court of Appeals for the Ninth Circuit and then served as a Skadden Fellow at the Brennan Center for Justice at New York University Law School.

In 2007, Sung joined the San Francisco office of Altshuler Berzon LLP, a union-side labor law firm established by now-Ninth Circuit Judge Marsha Berzon. In 2013, Sung became a Partner with McKanna Bishop Joffe LLP in Portland. Since 2017, Sung has been a member of the Oregon Employment Relations Board, where she helps to resolve labor disputes and conflicts.

History of the Seat

Sung has been nominated to an Oregon seat on the U.S. Court of Appeals for the Ninth Circuit. This seat is currently held by Judge Susan Graber, who has announced her intention to move to senior status upon confirmation of her successor.

Legal Experience

Consistent with her work as a labor organizer prior to law school, Sung has spent her career as a labor lawyer, frequently representing unions and worker’s groups. Some of her prominent cases are summarized below.

Challenge to Arizona SB 1365

In 2011, Sung represented the Local 5 Service Employees International Union in challenging Arizona SB 1365, which limited public employees’ ability to send payroll deductions to certain unions that engaged in political activity. See United Food & Commer. Workers Local 99 v. Brewer, 817 F. Supp. 2d 1118 (D. Ariz. 2011). The law was enjoined by U.S. District Judge Murray Snow, who found that it violated the First Amendment. See id.

Challenge to ACA Individual Mandate

In 2011, Virginia challenged the individual mandate of the Affordable Care Act as unconstitutional and won before the U.S. District Court. Sung represented the Service Employees International Union as amicus before the Fourth Circuit urging the court to uphold the mandate. See Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011). The Court upheld the constitutionality of the individual mandate (and the U.S. Supreme Court eventually agreed). See id.

New York Transit Strike of 2005

In 2005, during negotiations over a new collective bargaining agreement between transportation unions and the the New York City Transit Authority, the Authority obtained an injunction pursuant to New York’s Taylor Law to prevent the unions from striking. See New York City Tr. Auth. v. Transport Workers Union of A., 35 A.3d 73, 75 (N.Y. App. Div. 2006). When the Local 100 of Transport Workers Union of America initiated a strike anyway, it was found in contempt and fined $1 million per day. See id. Sung represented amicus in supporting the Union’s challenge to the contempt citation on appeal. See id. However, the Appellate Division of the New York Supreme Court upheld the citation against the Union’s Sixth and Fourteenth Amendment challenges. See id.

Los Angeles Worker Retention Ordinance

In 2011, Sung represented amicus in defending the City of Los Angeles worker retention ordinance, which limited employers’ ability to replace their workforces. See California Grocers Ass’n v. City of Los Angeles, 52 Cal. 4th 177 (2011). While the California Court of Appeals struck down the ordinance as being pre-empted by state law, the California Supreme Court upheld the ordinance. See id. at 210.

Legislative and Policy Work

While at the Brennan Center, Sung also worked on labor policy outside of the litigation context. For example, Sung advised the New York Working Families Policy in developing a proposal to tax companies, such as Wal Mart, who failed to provide health benefits for their workers. See Danny Hakim, Wal-Mart Looms Over 2 Bills to Improve Worker Health Care, N.Y. Times, Mar. 8, 2006. Sung also helped draft a Chicago ordinance requiring big box retailers, such as Wal-Mart, to provide a living wage to employees. See Gretchen Ruethling, In Chicago, New Pay Law Is Considered for Big Stores, N.Y. Times, May 28, 2006.

Overall Assessment

With extensive experience in labor law, Jennifer Sung has an unusual background for an appellate nominee. Not since Marsha Berzon was appointed to the Ninth Circuit in 2000 has such a nominee been picked for the Ninth Circuit. Based on her representations and her work in drafting ordinances and legislation, Sung is likely to attract opposition from most Senate Republicans. However, assuming that Democrats stick together, they should be able to confirm Sung by the Fall. Once confirmed, it is likely that Sung would establish a jurisprudential profile similar to that of Berzon’s.