Anne Nardacci – Nominee to the U.S. District Court for the Northern District of New York

One of the oldest judicial vacancies in the country is on the Northern District of New York, open for approximately six years. After the two prior presidents failed to fill this seat, President Biden is taking a shot with Anne Nardacci.

Background

The 45-year-old Anne M. Nardacci got her Bachelor of Arts from Georgetown University in 1998 and, after a year on the staff of Congressman Michael McNulty, went on to earn her J.D. from Cornell Law School in 2002. After law school, Nardacci spent three years at the New York office of Skadden, Arps, Slate Meagher & Flom.

In 2005, Nardacci joined the Albany office of Boies Schiller Flexner LLP, where she still works.

History of the Seat

Nardacci has been nominated to a seat on the U.S. District Court for the Northern District of New York. This seat opened on January 1, 2016, when Judge Gary Sharpe moved to senior status. While the seat opened with a year left in the Obama Administration, the Administration never extended a nominee for the vacancy and it was carried over into the Trump Administration. In October 2018, upon the recommendation of two Republican Congressmen in New York, Lee Zeldin and John Faso, President Trump nominated New York Judge Thomas Marcelle for the vacancy. Marcelle had also been nominated for a federal judgeship by President George W. Bush but was blocked by Senator Charles Schumer. Robert Gavin, Marcelle Seen in Line for Federal Judgeship, Houston Chronicle, May 4, 2018, https://www.chron.com/local/article/Marcelle-seen-in-line-for-federal-judgeship-12889507.php. This time around, Marcelle was blocked by Sen. Kirsten Gillibrand over his record on abortion, and Marcelle withdrew his nomination in August 2019. Robert Gavin and Mike Goodwin, Gillibrand Blocks Area Judge’s Nomination, Albany Times Union, Aug. 30, 2019, https://www.pressreader.com/usa/albany-times-union/20190830/281535112661040. On August 12, 2020, McAllister was nominated in a second try to fill this seat. His nomination was also not processed before the end of the Trump Administration.

In November 2021, Senate Majority Leader Chuck Schumer recommended Nardacci to fill this seat on the Northern District of New York. See Marco Poggio, Schumer Puts Forward Boies Schiller Partner for NY Court, Law360, Nov. 15, 2021. Nardacci was nominated on April 27, 2022.

Legal Experience

Nardacci has spent her entire career in private practice, starting at Skadden Arps, and then working at Boies Schiller in Albany. At Boies, Nardacci works primarily in antitrust litigation, both in defending companies, and on the affirmative side, working as outside counsel in state investigations and enforcement actions.

The notable cases that Nardacci participated in include antitrust litigation over cathode ray tubes in the Northern District of California. See In re Cathode Ray Tube Antritrust Litig. (N.D. Cal.) In another notable case, Nardacci represented AngioDynamics, a medical device manufacturer, in a suit alleging anticompetitive behavior by C.R. Bard, a rival company. See Caitlin Stefanik, AngioDynamics Lawsuit Alleges C.R. Bard is Violating Antitrust Laws, Harming Competition and Limiting Access, Financial Buzz, May 31, 2017. An attempt by C.R. Bard to dismiss the lawsuit for failure to state a claim was denied by Judge Brenda Sannes. See AngioDynamics, Inc. v. C.R. Bard, Inc., 1:17-cv-00598 (N.D.N.Y. Aug. 8, 2018) (J. Sannes).

Additionally, Nardacci represented a debtor in a class action lawsuit regarding whether the discharge provisions of the Bankruptcy Code conflict with the Federal Arbitration Act. See Vince Sullivan, High Court Won’t Hear Bank’s Bid to Arbitrate Ch. 7 Debt, Law360, Mar. 8, 2021. The suit ended in a Second Circuit judgment in the debtor’s favor and a denial of certiorari by the Supreme Court. See id.

Political Activity

Nardacci has been a frequent political donor, having given to the Presidential campaigns of Obama and Biden, as well as the Senate campaign of Senator Kirsten Gillibrand.

Overall Assessment

As a commercial and antitrust litigator, Nardacci has attracted little controversy over her career. Barring the unexpected, she should see a comfortable confirmation before the end of the year.

Ryan McAllister – Nominee to the U.S. District Court for the Northern District of New York

With the 116th Congress ticking down, the Trump Administration is running out of time to fill vacancies before the 2020 presidential election.  After previous nominee Thomas Marcelle was blocked for a New York vacancy, Trump has put forward Stephen McAllister, an Albany based attorney.

Background

43 year old Ryan Thomas McAllister got his Bachelor of Arts from the Catholic University of America in 1999 and went on to earn his J.D. from Harvard Law School in 2002.[1]  After law school, McAllister clerked for Judge Richard Wesley on the New York Court of Appeals and then on the U.S. Court of Appeals for the Second Circuit after Wesley was confirmed to the federal bench.  McAllister then joined the Office of Gov. George Pataki as Assistant Counsel.[2]

After Pataki left office in 2006, McAllister joined the Albany office of Boies Schiller Flexner LLP as an Associate.[3]  In 2011, McAllister became Senior Counsel for the Senate majority of the New York State Senate while working as a solo practitioner in Albany.

In 2016, McAllister moved to Washington D.C. to work for U.S. Rep. John Faso.[4]  After Faso lost re-election in 2018, McAllister returned to Albany to become a Partner at Boies Schiller Flexner LLP, where he currently works.

History of the Seat

McAllister has been nominated to a seat on the U.S. District Court for the Northern District of New York.  This seat opened on January 1, 2016, when Judge Gary Sharpe moved to senior status.  While the seat opened with a year left in the Obama Administration, the Administration never extended a nominee for the vacancy and it was carried over into the Trump Administration.

In October 2018, upon the recommendation of two Republican Congressmen in New York, Lee Zeldin and John Faso, the White House nominated New York Judge Thomas Marcelle for the vacancy.  Marcelle had also been nominated for a federal judgeship by President George W. Bush but was blocked by Senator Charles Schumer.[5]  This time around, Marcelle was blocked by Sen. Kirsten Gillibrand over his record on abortion, and Marcelle withdrew his nomination in August 2019.[6]  On August 12, 2020, McAllister was nominated in a second attempt to fill this seat.

Legal Experience

McAllister’s legal career can be divided into his time in politics and his time in litigation.  In the former category, we can find McAllister’s role working for Gov. George Pataki, the New York State Senate, and Rep. John Faso.  In the latter, you have McAllister’s time at Boies Schiller and as a solo practitioner.  In these positions, McAllister largely focused on commercial litigation, as well as some criminal defense.

One of McAllister’s most notable cases was his role representing B.J.’s Wholesalers as a plaintiff in an action challenging anticompetitive activities conducted by industrial producers of chicken meat.[7]  

Political Activity

McAllister, a Republican, has worked closely in politics for much of his career, including working for Gov. George Pataki and Rep. John Faso.  McAllister also worked as a staffer for the Republican majority in the New York State Senate between 2011 and 2016.  Furthermore, in 2016, McAllister considered running for Congress but instead chose to support Faso.[8]

Additionally, McAllister has frequently donated to Republicans.[9]  In addition to Faso, McAllister has supported the Presidential campaigns of NYC Mayor Rudy Giuliani and Sen. Marco Rubio.[10] 

Overall Assessment

In theory, McAllister would not have been nominated to a district court seat without at least a preliminary sign-off from his home state senators.  That suggests at least some acquiescence by Senators Schumer and Gillibrand.  However, as the nomination of his predecessor showed, there’s many a slip between nomination and confirmation.  Given the close distance to the election, it is unlikely that New York’s senators will return blue slips on the nomination.  If they do, however, McAllister will likely be confirmed by the end of the year.


[1] Ryan McAllister, Linkedin.com, available at https://www.linkedin.com/in/ryan-mcallister-324871108/ (last visited Aug. 17, 2020).

[2] Id.

[3] Id.

[4] Id.

[5] Robert Gavin, Marcelle Seen in Line for Federal Judgeship, Houston Chronicle, May 4, 2018, https://www.chron.com/local/article/Marcelle-seen-in-line-for-federal-judgeship-12889507.php.

[6] Robert Gavin and Mike Goodwin, Gillibrand Blocks Area Judge’s Nomination, Albany Times Union, Aug. 30, 2019, https://www.pressreader.com/usa/albany-times-union/20190830/281535112661040.

[7] In re Broiler Chicken Antitrust Litig., 2020 U.S. Dist. LEXIS 36202, No. 16 C 8637 (N.D. Ill. Mar. 3, 2020) (Durkin, J.).

[8] See Joe Mahoney, Magee to Run Again; Delaware GOP Boss Eyes Tenney’s Seat, The Daily Star, Jan. 23, 2016.

[9] Federal Election Commission, Individual Contribution Lookup, https://www.fec.gov/data/receipts/individual-contributions/?contributor_name=Ryan+McAllister&contributor_state=NY (last visited Aug. 18, 2020).

[10] See id.

Judge Thomas Marcelle – Nominee to the U.S. District Court for the Northern District of New York

A couple of unsuccessful judicial nominees from the George W. Bush administration have seen new light under President Trump, with mixed degrees of success.  In New York, the Trump Administration has renominated Thomas Marcelle, who saw his previous nomination fail in 2008.

Background

An Albany native, Thomas James Marcelle was born there in 1962.  He received a Bachelor of Arts from Bowdoin College in 1984 and went on to earn his J.D. from Cornell Law School in 1988.[1]  Marcelle then maintained a solo practice in Albany, which continues to this day.[2]

In addition to his solo practice, Marcelle has worked as an Assistant Public Defender (working under Doug Rutnik, the father of Sen. Kirsten Gillibrand), a Trial Attorney for the Department of Justice, and, from 2002 to 2012, as Minority Counsel to the Minority Caucus of the Albany County Legislature.[3]  From 2012 to 2015, Marcelle served as Albany County Attorney, and in 2016, as Chief Counsel for the Albany County Sheriff’s Office.  Since 2016, Marcelle has served as a Judge on the Cohoes City Court.

On July 31, 2008, then President George W. Bush nominated Marcelle to an open seat on the U.S. District Court for the Northern District of New York.  With the nomination coming after the “Thurmond Rule” was initiated, it was not processed by the Democratic Senate and the vacancy was filled by President Obama in 2011 with Judge Mae D’Agostino.

History of the Seat

Marcelle has been nominated to a seat on the U.S. District Court for the Northern District of New York.  This seat opened on January 1, 2016, when Judge Gary Sharpe moved to senior status.  While the seat opened with a year left in the Obama Administration, the Administration never extended a nominee for the vacancy and it was carried over into the Trump Administration.  In February 2018, upon the recommendation of two Republican Congressmen in New York, Lee Zeldin and John Faso, Marcelle was interviewed by the White House.[4]  The White House announced Marcelle’s nomination on October 10, 2018.

Legal Experience

While Marcelle has held many different legal positions in his career, his most significant cases have revolved around religious rights.  Notably, the only case that Marcelle argued before the Supreme Court involved religious rights.[5]  In that case, Marcelle represented a Good News Club, which was not permitted to use school facilities because of its inclusion of worship and prayer.[6]  The Supreme Court ultimately sided with Marcelle’s clients on a 6-3 basis.[7]

In other cases, Marcelle represented a kindergartener who sought to pray out loud before meals at her school.[8]  He also sued for the restoration of bricks bearing evangelical messages to a public school.[9] 

Jurisprudence

Since 2016, Marcelle serves as a City Court Judge in Cohoes.  In this capacity, Marcelle presides over small civil cases and criminal misdemeanors.  In the last two years, Marcelle has presided over approximately 200 bench trials.[10]  Among his more notable cases, Marcelle found that a defendant who struck and killed a sixteen-year-old girl was Not Guilty of violating the traffic codes for driving at an unreasonable or unsafe speed, as he was traveling at 53 mph in a 40 mph zone.[11]

Political Activity

Marcelle, a Republican, has been very politically active including running for office (unsuccessfully) twice, and successfully once (for the Bethlehem Town Council).[12]  Marcelle has also served on the Albany County Republican Committee between 1993 and 2011.[13]

In addition, Marcelle has been a member of the Federalist Society for Law and Public Policy Studies since 1990 and has worked as an Allied Attorney Coordinator for Alliance Defending Freedom, a conservative Christian nonprofit which has been designated as a hate group by the Southern Poverty Law Center for their work defending state sanctioned sterilization of transgender individuals abroad.

Overall Assessment

On paper, Marcelle’s nomination should be set for a comfortable confirmation.  Unlike in 2008, Republicans control the U.S. Senate, and, despite his strongly conservative record, it appears that New York’s Democratic senators have signed off on Marcelle’s nomination.[14]  However, perhaps in response to the Trump’s Administration decision to move Second Circuit nominees over the objections of Sens. Schumer & Gillibrand, Marcelle’s nomination has yet to receive a hearing.  It is possible that the Senators and the Administration will reach an agreement to fill the remaining New York vacancies.  Until then, it remains to be seen if Marcelle’s second nomination will be any more successful than his first.


[1] Sen. Comm. on the Judiciary, 115th Cong., Thomas Marcelle: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id. at 48.

[5] See Good News Club v. Milford Central School, 533 U.S. 98 (20010.

[6] See Shannon McCaffrey, Justices Debate Church-State Case, Associated Press Online, Feb. 28, 2001.

[7] Good News Club, 533 U.S. at 98.

[8] SARATOGA SPRINGS, Judge Orders School to Allow Kindergartener to Say Grace, A.P. State & Local Wire, Feb. 6, 2002.

[9] Michael Virtanen, Judge Orders School District to Replace Bricks That Mention Jesus, A.P. State & Local Wire, Apr. 4, 2006.

[10] See Marcelle, supra n. 1 at 21.

[11] See People v. Lamb, 72 N.Y.S.3d 799 (Cohoes City Ct. 2018).

[12] See Marcelle, supra n. 1 at 33-34.

[13] See id. at 34.

[14] See Robert Gavin, Marcelle Seen in Line for Federal Judgeship, Albany Times Union, May 4, 2018, https://www.timesunion.com/local/article/Marcelle-seen-in-line-for-federal-judgeship-12889507.php.