Second Circuit

Justice Maria Araujo Kahn – Nominee to the U.S. Court of Appeals for the Second Circuit

Connecticut Supreme Court Justice Maria Araujo Kahn has served the last sixteen years as a state judge, building a long judicial record that may be parsed for her appellate nomination.

Background

Born to a Portuguese family in Angola in 1964, Maria Araujo Kahn immigrated to the United States at age 10. Kahn graduated from New York University in 1986 and the Fordham University Law School in 1989. After graduating, Kahn clerked for Judge Peter Dorsey on the U.S. District Court for the District of Connecticut.

In 1993, Kahn joined the Connecticut Office of Protection and Advocacy for Individuals with Disabilities. She subsequently became an Assistant U.S. Attorney based in New Haven. In 2006, Republican Governor Jodi Rell appointed Kahn, a Democrat, to the New Haven County Superior Court.

In 2013, Kahn was recommended to President Obama for the federal district court in Connecticut, but another nominee, Jeffrey Mayer, was nominated and confirmed instead.

In 2017, Kahn was elevated to the Connecticut Appellate Court by Governor Dannel Malloy. Malloy subsequently appointed Kahn to the Connecticut Supreme Court, replacing Justice Carmen Espinosa. Kahn has served on the court since.

History of the Seat

Kahn has been nominated to replace Judge Jose Cabranes, who has announced his desire to take senior status upon the confirmation of a successor.

Legal Career

After her clerkship, between 1993 and 1997, Kahn worked for the Connecticut Office of Protection and Advocacy for Individuals with Disabilities, where she litigated in support of plaintiffs seeking medical and legal rights in health care litigation. For example, Kahn filed an amicus brief in support of a plaintiff seeking to stop the forcible administration of medication for his mental illness in non-emergency situations. See Doe v. Hunter, 667 A.2d 90 (Conn. Super. 1995).

Kahn subsequently became a federal prosecutor with the U.S. Attorney’s Office for the District of Connecticut. In this role, Kahn worked alongside future federal judge Stephen Robinson and future federal judicial nominee Barbara Jongbloed to prosecute Dr. Oscar Perez Gomez for Medicare fraud. United States v. Gomez, 2003 U.S. Dist. LEXIS 16068 (D. Conn. Aug. 29, 2003). She also prosecuted cases of mail and wire fraud. See, e.g., United States v. Clarke, 390 F. Supp. 2d 131 (D. Conn. 2005).

Jurisprudence

Kahn has served on all levels of the Connecticut judiciary: trial, appellate, and supreme. She has been appointed to these positions by Governors of both political parties.

Superior Court

Kahn joined the New Haven County Superior Court after her appointment by Rell in 2006. In that role, Kahn served as a trial judge hearing both civil and criminal cases. Early in her time on the bench, Kahn declined to overturn a Council decision to approve a Spring cell tower to be built in Litchfield. See Rosa v. Sitting State Council, 2007 Conn. Super. LEXIS 590 (2007).

On the criminal side, Kahn declined to suppress evidence arising from a traffic stop, finding that the officer had reasonable suspicion for the stop and that he did not unreasonably prolong the traffic stop. State v. Cronin, 2008 Conn. Super. LEXIS 2899 (2008). She also declined to dismiss a DUI charge where the police officer had videotaped the defendant while he was consulting with his attorney on whether to take a breathalyzer. State v. Abbate, 2011 Conn. Super. LEXIS 2494 (2011).

Court of Appeals

In 2017, Gov. Malloy elevated Kahn to the Connecticut Appellate Court. Kahn’s tenure on the Appellate Court was fairly short before her elevation.

Supreme Court

A few months after she was appointed to the Connecticut Appellate Court, Kahn was elevated to the Connecticut Supreme Court by Malloy. Kahn has served on the seven-member court since.

Among her key opinions on the Connecticut Supreme Court, Kahn wrote for the majority declining to fashion a Miranda-like prophylactic rule that would require the police to warn juveniles that their crimes may have adult consequences before questioning them. See Pat Eaton-Robb, Court Won’t Create Special Miranda Warning for Juveniles, A.P. State & Local, June 28, 2018.

In another ruling, Kahn wrote for a unanimous court in overturning Sen. Ernest Newton’s convictions for campaign fraud, ruling that the trial court had improperly instructed the jury on the level of intent needed for conviction. See Court Overturns Former Senator’s Campaign Fraud Convictions, A.P. State & Local, Oct. 12, 2018. In contrast, Kahn upheld a murder conviction resting solely on “cross-racial” eyewitness testimony, finding that defense attorneys had failed to meet their burden to show that no reasonable factfinder would have convicted. See Pat Eaton-Robb, Court Upholds Conviction Based on ID by Single Eyewitness, A.P. State & Local, Oct. 11, 2019.

In one notable case, Kahn concurred in the Connecticut Supreme Court’s ruling upholding a conviction for breach of the peace, finding that using the n-word in referring to an african american public servant constituted “fighting words” which were unprotected by the First Amendment. See State v. Liebenguth, 250 A.3d 1 (Conn. 2020). In her concurring opinion, Kahn described the fighting words doctrine, which allows the state to prohibit words likely to incite violence, as “dubious,” noting that it “leads to consideration of stereotypical propensities for violence when assessing an addressee’s likely response to the speaker’s words.” Id. (Kahn, J., concurring).

Writings and Statements

In 2019, Kahn joined fellow Supreme Court Justice Richard Robinson on a panel at Eastern Connecticut State University discussing implicit biases in the legal system. Connecticut Supreme Court Justices Discuss Implicit Biases, Targeted News Service, Apr. 9, 2019. In her remarks at the event, Kahn discusses “hidden biases” that people often don’t recognize. Kahn states:

“Example: When people see a Black person and say ‘I don’t see color,’ Oh yes you do! You take information about Black people already in your head, which rejects notions of you opening your mind more to being a more transparent human being.” See id. (quoting Hon. Maria Araujo Kahn).

Overall Assessment

Over her sixteen years on the Connecticut state bench, Kahn has built a relatively mainstream record, with few rulings that have drawn criticism or controversy. That, combined with her comparative lack of youth, should make Kahn a less controversial nominee. However, Kahn may, nonetheless, draw opposition based on her remarks on implicit bias. Additionally, Kahn also faces a limited senate calendar, making the prospects of an end-of-year confirmation more difficult than otherwise anticipated.

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Judge Sarah Merriam – Nominee to the U.S. Court of Appeals for the Second Circuit

After only about six months on the federal district court bench, Judge Sarah Merriam is now poised for elevation to the U.S. Court of Appeals for the Second Circuit.

Background

Sarah A.L. Merriam earned her B.A. from Georgetown University in 1993 and her J.D. from Yale Law School in 2000. After graduating law school, Merriam joined the Hartford office of Cowdery, Ecker, & Murphy as an Associate. In 2007, Merriam moved to the public sector as an Assistant Federal Defender, staying in the office for eight years. In 2015, Merriam was chosen to be a federal magistrate judge, replacing Judge Holly Fitzsimmons.

On June 15, 2021, President Joseph Biden nominated Merriam to the U.S. District Court for the District of Connecticut. Merriam was confirmed by the Senate on October 6, 2021 and has served as a U.S. District Court judge since.

History of the Seat

Merriam has been nominated to a vacancy on the U.S. Court of Appeals for the Second Circuit for a seat to be vacated upon confirmation (likely by Judge Susan Carney).

Legal Career

Merriam started her legal career as an associate at Cowdery, Ecker, & Murphy, where she worked alongside partner Steven Ecker, who now serves on the Connecticut Supreme Court. Among the cases that Merriam and Ecker worked on together, they represented Directors of Reflexite Corp. in defending against a suit alleging that they violated their fiduciary duties to the corporation. See Frank v. LoVetere, 363 F. Supp. 2d 327 (D. Conn. 2005).

From 2007 to 2014, Merriam worked in the Office of the Federal Defender, representing indigent defendants in Connecticut federal court. Among the cases she handled with the office, Merriam represented Michael Danzi, one of two brothers charged with participating in a drug distribution ring importing marijuana from Canada. United States v. Danzi, 726 F. Supp. 2d 109 (D. Conn. 2009).

Jurisprudence

Merriam served as a U.S. Magistrate Judge since her appointment in 2015, where she handles detention, discovery disputes, misdemeanors, and social security/benefits cases. As an example of a matter she handled, Merriam affirmed an administrative decision denying disability benefits for Dana Poole, finding that substantial evidence supported the determination that Poole’s disabilities were not sufficiently severe to qualify her for the benefits. Poole v. Saul, 462 F. Supp.3d 137 (D. Conn. 2020).

In another notable decision, Merriam ruled against the Libertarian Party of Connecticut, finding that the plaintiffs had not shown that Connecticut’s petitioning requirements were overly burdensome on the party. Libertarian Party of Conn. v. Merrill, 470 F. Supp. 3d (D. Conn. 2020).

Since October 2021, Merriam has served as a U.S. District Judge. In her limited tenure as a District Judge, Merriam presided over the corruption trial of State Rep. Michael DiMassa, accused of embezzling hundreds of thousands of dollars of epidemic relief money. See Chris Powell, Corruption in Connecticut Switches Political Parties, Manchester Journal Enquirer, Oct. 27, 2021. Merriam also presided over a suit by Yale Law students alleging retaliation for their refusal to lie in a faculty investigation, in which she declined to allow the plaintiffs to proceed pseudonymously.. See Eugene Volokh, No Pseudonymity in Yale Law School DinnerPartyGate Lawsuit, Volokh Conspiracy, Jan. 19, 2022.

In other rulings, Merriam found that a Federal Tort Claims Act suit brought by a Honduran immigrant was outside the statute of limitations. See Grace Dixon, Honduran Migrant’s Rape Case Against ICE Agent Too Late, Law360, Mar. 29, 2022.

Overall Assessment

Merriam’s initial confirmation to the bench was relatively uncontentious, even though she still drew opposition from the vast majority of Senate Republicans. While Merriam may draw 2-3 Republican votes for elevation at most, she is still favored for confirmation.

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Judge Alison Nathan – Nominee to the U.S. Court of Appeals for the Second Circuit

In addition to presiding over many high profile cases in her current post on the Southern District of New York, Judge Alison Nathan has a distinguished background, tailor-made for elevation to the Second Circuit.

Background

Born Alison Julie Nathan on June 18, 1972 in Philadelphia, Nathan received her B.A. from Cornell University in 1994 and then spent a couple of years working in Japan and Thailand before getting a J.D. from Cornell Law School in 2000. After graduating, Nathan clerked for Judge Betty Binns Fletcher on the U.S. Court of Appeals for the Ninth Circuit and for Justice John Paul Stevens on the U.S. Supreme Court, as part of a clerk class that year produced five other federal judges: D.C. Circuit Judge Neomi Rao; Fifth Circuit Judge Gregg Costa; Ninth Circuit Judge Michelle Friedland; Northern District of California Judge Vince Chhabria; and Former Court of Appeals for the Armed Forces Judge Margaret Ryan.

After her clerkships, Nathan spent four years at Wilmer Cutler Pickering Hale & Dorr LLP before joining Fordham University School of Law as a professor. In 2008, she shifted to New York University School of Law.

After the election of President Obama, Nathan spent a year as Special Assistant to the President and Associate White House Counsel before joining the New York Solicitor General’s Office.

On March 31, 2011, Obama nominated Nathan to be a judge on the U.S. District Court for the Southern District of New York, filling the seat opened by Judge Sidney Stein’s move to senior status. Despite bipartisan support out of the Senate Judiciary Committee, Senate Republicans were cognizant of the likelihood that Nathan would be elevated and unanimously opposed her, leading to a squeaker 48-44 confirmation on October 13, 2011. Nathan currently serves on the Southern District.

History of the Seat

Nathan has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit. This seat will be vacated by Judge Rosemary Pooler upon the confirmation of a successor.

On November 17, 2021, Nathan was recommended for the vacancy by Senate Majority Leader Chuck Schumer. However, Nathan was likely pre-vetted by the White House as her nomination was made public the same day.

Legal Career

While Nathan’s legal career from clerkship to the bench was a relatively short nine years, she managed to hold a number of positions in that time, including in government, academia, and private practice. During this time, Nathan tried one bench trial in federal court, while also filing one merits brief, four amicus briefs, and one petition for certiorari at the Supreme Court.

Among her more significant matters during her career, Nathan was part of the legal team defending the constitutionality of a New York state tax statute relating to the taxation on cigarette sales in Indian reservations. See generally Seneca Nation of Indians, et al. v. Paterson (multiple related matters). Nathan also authored an amicus brief at the Supreme Court on behalf of forty one states and the District of Columbia, arguing that the Constitution permits remote sellers of cigarettes to be subject to state and local regulations. The Second Circuit ultimately upheld an injunction against the statute allowing the regulations.

Political Activity

Before joining the bench, Nathan was active in working on Democratic campaigns, having taken time off while at Wilmer to work as a legal adviser on the John Kerry Presidential campaign and having done voter protection for ten months for the Obama campaign in 2008. Nathan also occasionally attended meetings of the New York Democratic Lawyer’s Council.

Jurisprudence

Nathan has served as a federal trial judge for approximately nine years. In her time on the bench, Nathan has handled a number of high-profile cases, some of which are detailed below:

American Broadcasting Cos, Inc. v. Aereo, Inc. – Nathan was assigned this suit by broadcasting companies seeking to prevent Aereo, a cloud-based streaming service for over-the-air television, from streaming their broadcasts. Nathan declined to enjoin Aereo, citing prior precedent confirming the legality of cloud-based streaming services. Nathan’s ruling was upheld by the Second Circuit but overturned 6-3 by the Supreme Court in 2014 (573 U.S. 431).

United States v. Ali Sadr Hashemi Nejad – In 2020, Nathan dismissed a prosecution against businessman Ali Sadr for violating U.S. sanctions against Iran after prosecutors disclosed issues with disclosing evidence. Nathan also criticized the conduct, ordering the government to identify the prosecutors responsible.

Guennol Stargazer – In 2021, Nathan ruled that the sale of a figurine extracted from western Turkey could not be enjoined as the figurine had been under display for years and there was no evidence that it’s excavation had violated Ottoman law. Furthermore, Nathan ruled that Turkey’s claims to the figurine were barred by the doctrine of Laches, which requires claims to be timely brought.

Ghislaine Maxwell – Nathan is currently presiding over the trial of British socialite Ghislaine Maxwell, who is accused of conspiring with Jeffrey Epstein in sex trafficking. Nathan previously ordered Maxwell held without bond, finding her to be a risk of flight.

Overall Assessment

There is little doubt that Nathan is well-qualified for a seat on the Second Circuit. Having extensive experience both as a judge and in analyzing the law as an attorney, Nathan would be able to hit the ground running on the famously intellectual court. Nonetheless, Nathan is likely to attract a sizeable cadre of opposition, based less on a particular decision or case but more on her likelihood to be a liberal heavyweight on the bench.

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Justice Beth Robinson – Nominee to the U.S. Court of Appeals for the Second Circuit

A pioneer in shaping the litigation and legislative strategy behind same-sex marriage, Beth Robinson made history in 2011 as the first openly LGBT Justice on the Vermont Supreme Court. She is now poised to make history again as the first openly LGBT judge on the Second Circuit.

Background

Born March 6, 1965, Beth Robinson graduated from Dartmouth College in 1986 and the University of Chicago Law School in 1989. After graduating, Robinson clerked for Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit and then joined the D.C. Office of Skadden, Arps, Slate, Meagher & Flom as an associate.

In 1993, Robinson joined Langrock Sperry & Wool in Vermont. In 2010, newly elected Democratic Governor Peter Shumlin chose Robinson to be his counsel. A year later, Shumlin named Robinson to the Vermont Supreme Court, where she currently serves.

History of the Seat

Robinson has been nominated for a Vermont seat on the U.S. Court of Appeals for the Second Circuit. This seat was vacated by Judge Peter Hall, who moved to senior status on March 4, 2021 (Hall tragically passed away shortly after).

Legal Career

Robinson spent most of her career in private practice, although she did spend a few months as Counsel for Gov. Peter Shumlin before he appointed her to the Supreme Court.

Notably, while in private practice, Robinson was instrumental in shaping the legislative and litigation strategy to bring marriage equality to Vermont. In 1999, Robinson successfully argued before the Vermont Supreme Court that the Vermont Constitution prohibited restricting same-sex couples from the benefits of marriage. Baker v. State, 744 A.2d 864 (Vt. 1999). Robinson continued her work as an advocate for same-sex marriage on the legislative front throughout the 2000s until she was tapped by Shumlin. See, e.g., John Curran, In Vermont, Gay Marriage Debate Keeping It Civil, A.P. State * Local Wire, Jan. 13, 2008.

Jurisprudence

Robinson has served on the Vermont Supreme Court for the past decade. Her record on the bench is generally liberal but within the Court’s mainstream. Below, we have summarized some of the key features of her jurisprudence:

Negligence and Civil Liability

On the bench, Robinson has generally read civil liability broadly to allow matters to reach a jury. For example, in 2013, Robinson wrote for a unanimous court in finding that summary judgment should not have been granted to an insurer over an accident caused by a permittee to whom the insured owner loaned the car. See State Farm Mutual Automobile Co. v. Colby, 2013 VT 80.

Criminal Procedure

Robinson has also read criminal procedural protections broadly, cabining prosecutions. For example, she wrote for the court in holding that the mere fact of a motorist stopping his car in a remote location did not create grounds for a trooper to make a traffic stop. State v. Button, 2013 VT 92. Robinson also overturned Shamel Alexander’s conviction for heroin trafficking, finding that law enforcement violated Alexander’s Fourth Amendment rights in stopping and searching him. Vermont v. Alexander, 2016 VT 19.

Criminal Law

Robinson has generally read criminal statutes narrowly. For example, Robinson wrote for a divided 3-2 court in overturning a man’s conviction of harassment, holding that Vermont law required threats of violence in order for conduct to qualify under the statute. State v. Waters, 2013 VT 109. Robinson also wrote for the court in throwing out a state prisoner’s conviction for illegally practicing law after she assisted other inmates with filing legal claims. In re Serendipity Morales, 2016 VT 85.

Furthermore, Robinson dissented from the Supreme Court’s 3-2 decision upholding Justin Kuzawski’s conviction for assault with a deadly weapon, writing that, in her view, the safety boxcutter that Kuzawski brandished did not qualify under the statute. See State v. Kuzawski, 2017 VT 118. She was also part of a panel that held that Jack Sawyer, accused of planning a school shooting, could not be held without bail. See Sadie Housberg, VT Supreme Court: Sawyer Cannot Be Held Without Bail, Middlebury Campus, Apr. 18, 2018.

In contrast, Robinson upheld Latonia Congress’ conviction for murder, finding that the trial judge was correct in declining to instruct the jury that they could reduce the charge to voluntary manslaughter. State v. Congress, 2014 VT 129. Chief Justice Paul Reiber dissented, arguing that common law retained the discretion to reduce such charges in the jury. See id. Robinson also dissented from a decision tossing a conviction for posting KKK recruitment posters on the apartment doors of black women. See State v. Schenk, 2018 VT 45. Notably, Robinson wrote for a 4-1 court (with Chief Justice Marilyn Skoglund in dissent) upholding Vermont’s revenge porn law against a constitutional challenge. State v. Van Buren, 2018 VT 95.

Writings and Statements

Given her prominence in the marriage equality fight in Vermont, Robinson has spoken and written a number of times regarding the issue. For example, in 2009, Robinson moderated a panel at Dartmouth College on the subject, where she noted that she was working on the issue’s legal strategy as early as 1994. See Same-Sex Marriage in Law and Society: Dartmouth College’s Law Day Program 2009: Transcript of Law Day Panel, 34 Vt. L. Rev. 243 (Winter 2009). She also participated in a symposium on marriage law for the Michigan Journal of Gender & Law. See 10 Mich. J. Gender & L 21, 27 (2003). Her remarks have (understandably) been strongly supportive of marriage equality. For example, in a speech at Seton Hall Law School, Robinson noted the impact of laws that discriminate based on sexual orientation:

“The law also tells a story…Before July 1, 2000, the story told by the laws of every state in this country was that committed, loving same-sex couples don’t exist, or if we do, our relationships have no value, and aren’t worthy of equal treatment under the law.” Beth Robinson, The Road to Inclusion for Same-Sex Couples: Lessons From Vermont, 11 Seton Hall Const. L. J. 237 (Spring 2001).

Robinson has also worked on the legislative battle for same-sex marriage, speaking out against bills to define marriage as only between a man and a woman. See Bill Would Define Marriage as Union of Man and Woman, A.P. State & Local Wire, Mar. 10, 1999. Robinson also advocated in favor of Vermont’s civil union bill, see Ross Sneyd, Sweeping Civil Union Bill Passes; Governor Will Sign It Into Law, A.P. State & Local Wire, Apr. 25, 2000, and later, Vermont’s gay marriage law. See John Curran, In Vermont, Gay Marriage Debate Keeping It Civil, A.P. State * Local Wire, Jan. 13, 2008.

Not all of Robinson’s writings have focused on the issue of same-sex marriage. In 1999, Robinson authored an article discussing negligence law affecting skiers injured on the slopes, and noting that Vermont caselaw generally leaves releases of liability unenforceable as a matter of public policy. See Beth Robinson, Playing it Safe: Allocating the Risk of Harm on the Slopes, 25 Ver. B. J. 15 (Mar. 1999).

Overall Assessment

With a decade of experience on Vermont’s highest court and more than two decades in litigation, Robinson will likely be deemed to be qualified for a seat on the Second Circuit. However, her advocacy on the same-sex marriage front, as well as her left-leaning record on the Supreme Court, may make her a controversial nominee to some senators. Nonetheless, there is little in Robinson’s record that would cause Democratic support to vanish, and, as such, her nomination will likely be confirmed by the end of the year.

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Myrna Perez – Nominee to the U.S. Court of Appeals for the Second Circuit

The Biden Administration has long telegraphed an interest in choosing judicial nominees who depart from traditional practice path, and, so far, has met this promise with their initial nominees. Myrna Perez, who made a name for herself as a prominent voting and elections scholar and litigator, fits into this pattern of nominee.

Background

Born in San Antonio to an immigrant family from Mexico, Perez received her B.A. from Yale University in 1996, an MPP from the Harvard Kennedy School in 1998, and her J.D. from Columbia Law School in 2003. After graduating, Perez clerked for Judge Anita Brody on the U.S. District Court for the Eastern District of Pennsylvania and for Judge Julio Fuentes on the U.S. Court of Appeals for the Third Circuit. After her clerkships, Perez served as a Civil Rights Fellow at the firm of Relman Dale & Colfax in Washington D.C. before joining the Brennan Center for Justice at the New York University School of Law. Perez is still with the Institute, serving as Director of the voting rights and elections program.

History of the Seat

Perez has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit. This seat was vacated by Judge Denny Chin, who moved to senior status on June 1, 2021.

Legal Career

Perez started her legal career clerking for Judge Anita Brody on the U.S. District Court for the Eastern District of Pennsylvania and then for Judge Julio Fuentes on the Third Circuit. She then spent a year working on civil rights ltiigation at Relman Colfax, where, among other matters, Perez represented the Idaho Aids Foundation in a suit against the Idaho Housing and Finance Association regarding the cut-off of funding for the former’s programming. See Idaho Aids Found., Inc. v. Idaho Hous. and Fin. Ass’n, 422 F. Supp. 2d 1193 (D. Idaho 2006).

Since 2006, Perez has been with the Brennan Center, where she has focused on suits focused on election law and voting rights. For example, Perez has part of the legal team participating as amici in a state court suit involving the voting rights of convicted felons in Alabama. See Chapman v. Gooden, 974 So. 2d 972 (Ala. 2007). She also participated as amicus in a suit challenging the at-large voting system set up by the Village of Port Chester as violative of the Voting Rights Act by diluting Hispanic votes. See United States v. Vill. of Port Chester, 704 F.Supp.2d 411 (S.D.N.Y. 2010).

More notably, Perez served as counsel for a number of plaintiff groups challenging Texas SB 14, which required photo ID in order to vote. Perez successfully persuaded a panel of the Fifth Circuit to strike down the law. See Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016). Perez also challenged SB 5, the voter ID law passed to replace SB 14, but a panel of the Fifth Circuit upheld the new law. Veasey v. Abbott, 888 F.3d 792 (5th Cir. 2018).

In other notable cases, Perez represented amici in challenges to North Carolina’s voter ID law, N.C. State Conf. of the NAACP v. Raymond, 981 F.3d 295 (4th Cir. 2020), represented plaintiffs challenging restrictions placed on felon re-enfranchisement by the Florida legislature, Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020) (en banc), and defended Pennsylvania’s mail-in-voting scheme for the 2020 elections. See Donald J. Trump v. Boockvar, 493 F. Supp. 3d 331 (W.D. Pa. 2020).

Statements and Writings

In her role at the Brennan Center, Perez has frequently written, spoken, and made media comments about issues of election law and voting rights. We summarize some of the key issues she has spoken on below.

Voter I.D.

Consistent with the litigation she has participated in, Perez has frequently spoken out in opposition to attempts to require photo ID to verify voter identity at the polls. Perez instead argues that voter integrity can be preserved without restrictive ID requirements, but instead by modernizing the registration process and improving the integrity of voting rolls. See Myrna Perez, Election Integrity: A Pro-Voter Agenda, Brennan Center for Justice, Jan. 19, 2016, https://www.brennancenter.org/our-work/policy-solutions/election-integrity-pro-voter-agenda.

Shelby County

In 2013, the U.S. Supreme Court struck down the preclearance coverage formula under Section 4(b) of the Voting Rights Act of 1965. Shelby County v. Holder, 570 U.S. 529 (2013). Both before and after the decision, Perez wrote in strong support of the preclearance formula enacted by Congress. Perez was critical of the Supreme Court’s decision to strike down the formula and urged congressional action to fix the gap.

Voter “Purges”

Perez has been sharply critical of voter “purges” in which states remove large number of voters from voter rolls en masse. Perez has called out such “purges” in Mississippi, Louisiana, Montana, Florida, Ohio, Indiana, Virginia, North Carolina, and Wisconsin, among other states. Nonetheless, Perez has spoken out supportively in favor of efforts to maintain accurate voter rolls, and has argued that states must strike the right balance between cleaning up voter rolls and not removing eligible voters. See Reid Wilson, Advocates Fear Ohio Decision Could Lead to More Voter Purges, The Hill, June 12, 2018 (quoting Myrna Perez).

Felon Enfranchisement

Perez has frequently written in support of restoring the right to vote to convicted felons. She also testified before the House Judiciary Committee in support of the For the People Act, an election reform bill which, among many provisions, restores voting rights to many Americans with felony convictions.

Overall Assessment

Because secure and accessible elections are fundamental to the health of a democracy, voting rights is an area of law that draws strong feelings from all sides. In investing her legal career in this controversial area of law, Perez likely recognizes that her nomination would draw an unusual degree of scrutiny and opposition.

Given Perez’s extensive experience litigating on the district court and appellate levels, opponents are unlikely to attack Perez’s intelligence, integrity, or skill as an attorney, but will likely instead argue that her record is too “political” to be a judge. Some senators may also argue that Perez’s specialized career does not prepare her for the spectrum of matters coming before the Second Circuit.

In short, expect virtually all Republicans to oppose Perez, but, as long as all Democrats can stay on board (likely with Senate Majority Leader Chuck Schumer championing the nomination), Perez will be confirmed in due course.

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Eunice Lee – Nominee to the U.S. Court of Appeals for the Second Circuit

With three vacancies pending on the Second Circuit, President Biden is getting his own chance to put a stamp on the influential court. His first pick is longtime federal defender Eunice Lee.

Background

Eunice C. Lee received her B.A. from Ohio State University in 1993 and her J.D. from Yale Law School in 1996. After graduating, Lee clerked for Judge Susan Dlott on the U.S. District Court for the Southern District of Ohio and for Judge Eric Clay on the U.S. Court of Appeals for the Sixth Circuit. After her clerkships, Lee joined the Office of the Appellate Defender in New York City, where she worked until 2019.

History of the Seat

Lee has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit. This seat was vacated by Judge Robert Katzmann, who moved to senior status on January 21, 2021.

Legal Career

Lee has spent virtually her entire legal career at the Office of the Appellate Defender, starting as a Staff Attorney, and moving on to a supervisory role. At the Office of the Appellate Defender, Lee represented indigent defendants in appellate proceedings in New York state and federal courts.

Among the cases she has handled in state court, Lee represented Ramon Roche, who was convicted of stabbing his common-law wife, Lillian Rivera, 12 to 14 times in the course of a violent struggle (Rivera passed away due to the injuries). See People v. Roche, 772 N.E.2d 1133 (N.Y. 2002). Lee successfully persuaded an appellate panel that the trial judge had erred in failing to instruct the jury regarding the affirmative defense of extreme emotional disturbance based on Rivera’s allegedly abusive behavior, and a divided panel reversed the conviction. See People v. Roche, 286 A.D.2d 290 (N.Y. App. Div. 2001). However, the New York Court of Appeals (despite its name, New York’s highest appellate court) reversed, holding that the defendant was not entitled to the instruction because the evidence was not sufficient to meet either element of the defense. See People v. Roche, 772 N.E.2d 1133 (N.Y. 2002).

Lee has also handled a number of appeals in the Second Circuit, the court she hopes to join. Recently, Lee represented Mahyoub Molhi Mohamed Houtar in challenging the constitutionality of the International Parental Kidnapping Crime Act (“IPKCA”). United States v. Houtar, 980 F.3d 268. Specifically, Lee argued that the IPKCA was intended to punish parents who absconded with their children to another country and was unconstitutionally vague as applied to Houtar, whose children were in Yemen for years before their mother petitioned a New York court for custody. See id. at 273. A panel of the Second Circuit rejected the challenge, holding that the statute provided sufficient notice that Houtar’s conduct was illegal, and that it specifically criminalized “retention” of children in addition to abduction. Id. at 275.

Overall Assessment

Having spent virtually her entire legal career representing indigent defendants, Lee brings an unusual background to the biglaw-dominated Second Circuit bench. While some senators may hold her representation of those convicted of crimes against her, Lee has little in her background that is likely to imperil her confirmation.

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William Nardini – Nominee to the U.S. Court of Appeals for the Second Circuit

While New York senators have frequently clashed with the White House over judicial appointments in the state, their neighbors in Connecticut have quietly formed a working relationship that has produced three relatively uncontroversial nominations, including that of William Nardini to the Second Circuit.

Background

William Joseph Nardini was born in Glen Ridge, NJ in 1969.  Nardini received his B.A. summa cum laude from Georgetown University in 1990 and his J.D. from Yale Law School in 1994.[1]  After graduating, Nardini clerked for Judge Jose Cabranes on the U.S. Court of Appeals for the Second Circuit and then for Judge Guido Calabresi on the same court.  Nardini then clerked for Judge Sandra Day O’Connor on the U.S. Supreme Court

In 2000, Nardini joined the U.S. Attorney’s Office for the District of Connecticut.[2]  He currently serves as Criminal Chief of the Office.

History of the Seat

Nardini has been nominated for a Connecticut seat on the U.S. Court of Appeals for the Second Circuit.  This seat was vacated by Judge Christopher Droney, who moved to senior status on June 30, 2019.  

In April 2019, Nardini was contacted by the White House to gauge his interest in the Second Circuit.[3]  In May 2019, Nardini applied to a selection committee set up by Connecticut Senators Richard Blumenthal and Christopher Murphy (both Democrats).[4]  On July 31, 2019, Nardini interviewed with the White House and with Blumenthal and Murphy, who both decided to back his nomination.  Nardini was nominated in September 2019.

Legal Career

Nardini has primarily worked as a federal prosecutor in Connecticut.  However, Nardini also spent four years on detail with the U.S. Embassy in Rome, where he represented the United States in extradition and mutual legal assistance in Italian criminal matters.[5]  Over the course of his career, Nardini has handled ten jury trials and around 350 appeals before the Second Circuit.

Nardini primarily prosecuted public corruption, organized crime, and racketeering cases.  For example, Nardini prosecuted FBI Agent John Connolly for his corrupt relationships with mobster Whitey Bulger.[6]  Nardini also prosecuted former Connecticut NAACP head Ben Andrews for a corrupt relationship with State Treasurer Paul Silvester.[7]

Nardini also handled terrorism cases, including the prosecution of U.S. Navy sailor Hassan Abu-Jihaad for disclosing national security information to organizations engaging in material support for terrorists.[8]

Political Activity

Nardini has a fairly apolitical background, with his only political experience being support for NJ Assemblyman Joseph A. Mecca, a Democrat, in 1991.[9]

Writings

In 2006, Nardini authored an article discussing the tools that prosecutors can use in prosecuting and undermining organized crime.[10]  In the article, Nardini outlines the various tools prosecutors can use, from subpoenas and warrants to offers of transactional immunity that can encourage witnesses to turn against their superiors in a criminal enterprise.[11]  Nardini suggests that prosecutors can use the tools at their disposal “in concert” with each other to ensure maximum effectiveness to target organized crime.[12]

Overall Assessment

Unlike the last few nominations to the Second Circuit, who have all drawn controversy, Nardini will likely be confirmed relatively easily.  His nonpartisan background and focus on prosecuting organized crime and terrorists make him salable to senators of both parties, and the support of Blumenthal and Murphy won’t hurt.  As such, Nardini’s nomination and likely confirmation is a testament to how smoothly the process can be when all parties work together in good faith.

[1] Sen. Comm. on the Judiciary, 116th Cong., William Nardini: Questionnaire for Judicial Nominees 1.

[2] Judge Andy Oldham on the U.S. Court of Appeals for the Fifth Circuit was a co-clerk of Nardini’s.

[3] See id. at 31.

[4] See id.

[5] Id. at 19.

[6] United States v. Connolly, Criminal No. 99-CR-10428-JLT (D. Mass.).

[7] Larry Neumeister, Lawyer Argues for New Trial for former Connecticut NAACP Head, Associated Press, Sept. 20, 2006.

[8] See United States v. Abu-Jihaad, Criminal No. 3:07-CR-57 (MRK) (D. Conn.).

[9] See Nardini, supra n. 1 at 17.

[10] William J. Nardini, The Prosecutor’s Toolbox, J. Int. Criminal Justice (2006) 4 (3): 528 (July 1, 2006).

[11] See id.

[12] Id. at 536.

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Steven Menashi – Nominee to the U.S. Court of Appeals for the Second Circuit

The 40 year old Menashi is poised to be one of the most controversial appellate nominees from the Trump Administration, given his writings exploring sensitive issues including ethnonationalism, religion, and constitutional meaning.  

Background

Steven James Menashi was born on January 15, 1979.  Menashi received his B.A. magna cum laude from Dartmouth College in 2001.  After graduating, Menashi worked for the Hoover Institute, a think tank based out of Stanford University and then spent a year working as an editorial writer for the New York Sun.  Menashi then joined Stanford Law School, graduating in 2008 with the Order of the Coif.  After graduating, Menashi clerked for Judge Douglas Ginsburg on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Samuel Alito on the U.S. Supreme Court.

After his clerkships, Menashi joined the New York City office of Kirkland & Ellis.  In 2016, Menashi left to become a law professor with the Antonin Scalia Law School at George Mason University.  In 2017, he joined the U.S. Department of Education, serving as Acting General Counsel.  In 2018, Menashi joined the White House as Special Assistant to the President and Associate Counsel to the President, where he currently serves.

History of the Seat

Menashi has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit.  This seat was vacated by Judge Dennis Jacobs, who moved to senior status on May 31, 2019.  

Legal Career

Menashi’s primary litigation experience has been the five years he spent at Kirkland & Ellis.  At the firm, Menashi participated in a number of suits involving pharmaceutical companies.  For example, he was part of the legal team that defended Abbott Laboratories for a suit relating to the psoriasis drug Humira, which the plaintiff alleged caused her to develop squamous cell carcinoma of the tongue.[1]  Menashi also defended a number of pharmaceutical companies against qui tam lawsuits alleging that they had defrauded the federal government by submitting fraudulent reimbursement claims.[2]  In a more controversial matter, he represented Teva Woman’s Health, a pharmaceutical company intervening in a suit seeking to allow emergency contraceptives to be sold without requiring a prescription.[3]

On the constitutional side, Menashi represented Jewish religious organizations in intervening in a lawsuit that challenged approval of religious projects in the City of Boca Raton.[4]  Judge Marra ultimately dismissed the lawsuit, brought by self-identified Christians, for lack of standing.[5]

Writings

Having worked as a journalist and an academic, Menashi has written extensively on the law, public policy, and issue areas that interest him.  While it is difficult to succinctly summarize all of his writings, two particular strains are highlighted below.

Constitutional Structure and Administrative Law

Menashi has written extensively on the U.S. Constitution, separation of powers, and federalism.  In interpreting the Constitution, Menashi is generally a proponent of textualism and a critic of the “living Constitution.”[6]  Furthermore, he is critical of the current structure of administrative law, arguing that it fails to support limited government and gives too much power to administrative agencies.[7]  Interestingly, he supported President Obama for using policy czars that were appointed solely by the White House and (unlike many agency heads) insulated from congressional oversight, noting that having the legislature oversee executive policy was “the greater threat to separated powers.”[8]  From these writings, one can conclude that Menashi is generally a proponent of greater executive power and less delegation of authority to agency heads and lawmakers.  

Ethnonationalism and Israel

Perhaps none of Menashi’s writings has drawn as much attention as a 2010 paper on the ethnonationalistic nature of Israel.[9]  The article has been criticized by various commentators, including Rachel Maddow as a call for state nationalism and “racial purity.”  In turn, Maddow and Menashi’s critics have themselves been criticized for being “racist” and “anti-semitic” in their criticism of Menashi.[10]

The article itself discusses Israel, and its commitment to being a “Jewish” state.  In the article, Menashi counters arguments that liberal democracies cannot bind themselves along an ethnonationalistic identity, arguing instead that the Holocaust “revealed that a liberal scheme of human rights requires a system of particularistic nation-states.”[11]  Menashi goes on to argue that the Holocaust targeted individuals who had no nation-state to support them and who were dependent on the concepts of “universal human rights” for protection.[12]  He goes on to argue that Israel’s system of citizenship and nationality is no different than those of other nation-states, comparing Israel’s “law of return” to kin-repatriation systems in other countries.

Menashi concludes:

“A political order may insist that certain human differences are irrelevant while people themselves regard those differences as meaningful and are consequently reluctant to recognize others as their equals.  Where the political order does not account for differences which correspond to deeply felt allegiances, the fact of difference becomes a threat to the political order.”[13]

Political Activity

Menashi has donated primarily to Republicans throughout his career.[14]  For example, Menashi donated to support Mitt Romney’s presidential campaign in 2012, as well as the Right to Rise PAC, which supported Jeb Bush’s presidential campaign in 2016.[15] 

Overall Assessment

There is little doubt that Menashi’s confirmation will be contentious.  Critics, after all, have a fair basis for arguing that Menashi holds a strongly conservative judicial philosophy and that his confirmation will move the closely divided Second Circuit sharply to the right.  

However, in discussing Menashi’s nomination, it is worth taking the time to consider the specific critiques based on Menashi’s 2010 article on ethnonationalism.  The thesis of the article could be summed up as follows: critics of Israel for maintaining an ethnonationalistic identity as a “Jewish” state are mistaken, as such ethnonationalistic identities are fundamental to the functioning of a liberal democracy.  Menashi’s article reads as a recognition that humans are tribal creatures and have inherent tendencies to organize in groups.  As such, the most vulnerable are those with no organized force to advocate for them.  In that sense, the article attempts to make a point consistent with one others have tried to make regarding race, namely that prejudice is such a deeply ingrained human quality, and that makes true blindness and universalism impossible.  As such, it is only through a recognition of race/nationalism and its impact, that one can completely transcend it.

That being said, Menashi’s critics (and it goes without saying that one can criticize an individual’s views without necessarily being motivated by prejudice) aren’t entirely off base either.  Menashi’s historical analysis is based upon the essential “statelessness” of the Jews (and other minorities targeted by the Holocaust).[16]  However, one could argue that the Jews targeted by the Holocaust were not stateless, but rather were the citizens of their home countries.  Furthermore, one could note that they were betrayed, not by universalism, but by a restrictive nationalism that denied their citizenship and humanity.

As such, one can disagree with Menashi’s thesis in the article.  While it is true that Israel’s brand of national ideology is far from unique among liberal democracies, it does not necessarily follow that such ethnonationalism is inherent or fundamental to liberal democracy.  Rather, one could use the United States as proof that liberal democracies can base their identity around a state ideology rather than ethnicity and can continue to thrive as such.

Overall, Menashi’s prolific writing career leaves senators with many aspects on which to question him, making today’s hearing all the more powerful for its impact.

[1] DiBartolo v. Abbott Labs., 914 F. Supp. 2d 601 (S.D.N.Y. 2012).

[2] United States v. Alpharma, Inc. et al., 928 F. Supp. 2d 840 (D. Md. 2013).

[3] Tummino v. Hamburg, 936 F. Supp. 2d 162 (E.D.N.Y. 2013).

[4] Gagliardi v. City of Boca Raton, 197 F. Supp. 3d 1359 (S.D. Fla. 2016).

[5] See id. at 1365-66.

[6] See Steven Menashi, The Undead Constitution, Policy Review (Oct-Nov. 2009).  

[7] Douglas H. Ginsburg and Steven Menashi, Our Illiberal Administrative Law, NYU Journal of Law & Liberty (2016).

[8] Steven Menashi, All the President’s Czars; Obama Emerges As a Champion of the Unitary Executive, Weekly Standard, Oct. 12, 2009.

[9] Steven Menashi, Ethnonationalism and Liberal Democracy, University of Pennsylvania Journal of Int’l Law (Nov. 2010).

[10] See, e.g., David Bernstein, Rachel Maddow’s Racist Smear of Second Circuit Nominee Steve Menashi, Reason, Aug. 17, 2019, https://reason.com/2019/08/17/rachel-maddows-racist-smear-of-second-circuit-nominee-steve-menashi/.  

[11] Id. at 61.

[12] Id. at 64.

[13] Id. at 121.

[15] See id.

[16] See supra n. 9 at 64.

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Michael Park – Nominee to the U.S. Court of Appeals for the Second Circuit

The 43 year old Park has spent the last four years as a conservative legal superstar at the boutique firm of Consovoy McCarthy Park PLLC.  He now faces an opportunity to be elevated to one of the most prestigious courts in the nation, but faces the opposition of a uniquely powerful senator.

Background

Michael Hun Park was born in St. Paul Minnesota on April 1, 1976.  Park received his B.A. from Princeton University in 1998 and his J.D. from Yale Law School in 2001.[1]  After graduating, Park clerked for then Judge Samuel Alito on the U.S. Court of Appeals for the Third Circuit and then joined the New York office of Wilmer Cutler Pickering Hale and Dorr LLP as an associate.

In 2006, Park joined the Department of Justice, working in the Office of Legal Counsel.  In 2008, Park left to clerk for Alito, now a Justice on the U.S. Supreme Court.[2]  After his clerkship, Park joined the New York office of Dechert LLP as an Associate, becoming a Partner in 2012.  In 2015, Park left to become a Partner at the conservative boutique firm Consovoy McCarthy Park PLLC, where he currently serves.

History of the Seat

Park has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit.  This seat was vacated by Judge Gerald Lynch, who moved to senior status on September 5, 2016.

In March 2017, Park was contacted by the White House to gauge his interest in the Second Circuit.[3]  Park’s name was then suggested to Schumer and Gillibrand as one of four potential nominees for the Second Circuit.[4]  Park began the nomination process in November 2017 and was nominated on October 10, 2018.  Park, however, is not supported by Schumer and Gillibrand, who both declined to return blue slips on his nomination.

Legal Career

Park has had a fairly distinguished career, including clerkships at the U.S. Supreme Court, and stints at the Department of Justice.  Early in his career, Park served as an Associate at Wilmer Cutler in New York where he represented Bankfirst in defending against actions based on the Americans with Disabilities Act.[5]  At the Office of Legal Counsel in the Department of Justice, Park primarily worked in an advisory capacity, but also helped organize the legal defense in immigration actions.[6]  Finally, at Dechert, Park primarily handled commercial and securities matters in state and federal courts.

However, Park has made his mark primarily at the conservative boutique firm Consovoy McCarthy & Park PLLC, which he helped found.  At Consovoy, Park has helped push conservative outcomes through litigation across the country.

Affirmative Action

Park has led in the field of affirmative action, bringing suits challenging the use of race in college admissions across the country, including against the University of North Carolina.[7]  Most notably, Park has led the suit challenging Harvard’s admissions policy for its impact of Asian American students.[8]  The lawsuit has drawn significant media attention as well as divided views across the political spectrum.[9]

Environmental Regulations

Park has represented the Chamber of Commerce and other business groups in their challenge to the Environmental Protection Agency’s “waters of the United States” rule.[10]  Their lawsuit was dismissed by Judge Claire Eagan, and an appeal ultimately ended with an administrative closing in accordance with the revision of the rule by the EPA.

Planned Parenthood

Park has represented the head of the Kansas Department of Health and Environment in suspending state Medicaid contracts with Planned Parenthood affiliates in the state.  The termination was, however, enjoined by Judge Julie Robinson, with her injunction being upheld by the Tenth Circuit.[11]

Overall Assessment

There is little doubt that Park possesses the legal ability and intellectual vigor for a seat on the Second Circuit.  However, given his use of litigation to push conservative policy outcomes at Consovoy, opponents are likely to raise serious concerns regarding Park’s impartiality on the bench.  Combined with the opposition of Schumer, the leader of Senate Democrats, Park’s confirmation may be rockier than that of his contemporaries.

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

[2] Judge Andy Oldham on the U.S. Court of Appeals for the Fifth Circuit was a co-clerk of Park’s.

[3] See id. at 77.

[4] Zoe Tillman, The White House Has Pitched a Nominee for Manhattan’s Powerful US Attorney Opening, Buzzfeed News, Aug. 7, 2017, https://www.buzzfeednews.com/article/zoetillman/the-white-house-has-pitched-a-nominee-for-manhattans.  

[5] Aquino v. Prudential Life & Cas. Ins. Co., 419 F. Supp. 2d 259 (E.D.N.Y. 2005).

[6] See Gegaj v. Mukasey, 262 Fed. Appx. 343 (2d Cir. 2008).

[7] Students for Fair Admission v. Univ. of N.C., 319 F.R.D. 490 (M.D.N.C. 2017).

[8] Students for Fair Admission, Inc. v. President & Fellows of Harvard College, No. 1:14-cv-14176-ADB (D. Mass. Filed Nov. 17, 2014).

[9] See Carrie Jung, Harvard Discrimination Trial Ends, But Lawsuit is Far From Over, Nat’l Pub. Radio, Nov. 2, 2018, https://www.npr.org/2018/11/02/660734399/harvard-discrimination-trial-is-ending-but-lawsuit-is-far-from-over.  See also P.R. Lockhart, The Lawsuit Against Harvard That Could Change Affirmative Action in College Admissions, Explained, Vox, Oct. 18, 2018, https://www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination.  

[10] Chamber of Commerce of the United States v. EPA, No. 16-5038 (10th Cir.).

[11] Planned Parenthood of Kan. & Mid-Missouri v. Andersen, 882 F.3d 1205 (10th Cir. 2018).

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Judge Joseph Bianco – Nominee to the U.S. Court of Appeals for the Second Circuit

Joseph Frank Bianco, a 52-year old federal judge for the Eastern District of New York, has been nominated for a seat on the Second Circuit Court of Appeals. From his days prosecuting crimes related to the September 11th attacks to ruling on MS-13 cases, Bianco earned a strong reputation as both a lawyer and a judge. He is well-respected in the legal community and likely to be confirmed.

Background

Bianco was born on September 11, 1966 in Flushing, New York. Bianco graduated from Columbia Law School in 1991 and clerked for the Reagan-appointed judge, Peter Leisure, of the United States District Court for the Southern District of New York from 1992 to 1993. After Bianco’s clerkship, he entered private practice as an associate at Simpson, Thatcher and Bartlett.

In 1994, Bianco began his long career in the public sector, serving as an Assistant United States Attorney (AUSA) for the Southern District of New York. As an AUSA, Bianco gained exposure to cases involving terrorism and organized crime. Bianco briefly returned to private practice from 2003 to 2004 as counsel at the law firm of Debevoise & Plimpton. From 2004 until his judicial nomination in 2005, Bianco served as a Deputy Assistant Attorney General in the United States Department of Justice’s Criminal Division.

Bianco was nominated by President George W. Bush, and subsequently confirmed by the Senate, in 2005 to serve as a United States District Court Judge for the Eastern District of New York.

Throughout his career, Bianco has taught courses on terrorism, national security, and criminal procedure as an adjunct professor at Fordham University School of Law, Maurice A. Deane School of Law at Hofstra University, the Touro Law Center, and St. John’s University School of Law.

A Catholic, Bianco earned his Master of Arts from the Seminary of the Immaculate Conception in 2013 and is an ordained Roman Catholic deacon.

History of the Seat

Bianco was nominated by President Trump on October 10, 2018 to sit on the Second Circuit Court of Appeals. He is nominated to fill the seat vacated by Judge Reena Raggi, who took Senior Status on August 31, 2018.

Because the Senate did not act on his nomination before the end of the 115th Congress, Bianco’s nomination was returned to Trump on January 3, 2019. Trump subsequently resubmitted Bianco’s nomination, along with 51 others, on January 23, 2019, and the Senate Judiciary Committee held a hearing on his nomination on February 13, 2019.

While both home state Senators Chuck Schumer and Hillary Clinton supported Bianco’s 2005 judicial nomination at that time, neither Senator Schumer nor Senator Kirsten Gillibrand returned a blue slip for his current nomination. Gillibrand has since stated that she and Schumer strongly object to the appointments of the “far-right-wing judicial nominees” Michael Park (also nominated for a seat on the Second Circuit) and Joseph Bianco.[1]

Political History

Bianco’s involvement in politics is limited to campaigning for Jack Kemp’s presidential bid in 1988 as an undergraduate student at Georgetown University.

Legal Career

Bianco spent his legal career prosecuting high-profile terrorism and organized crime cases. As an AUSA, Bianco brought cases against Mokhtar Haouari (for conspiring to provide material support to the terrorist plot to bomb LAX),[2] Ahmed Sattar and Lynne Stewart (for providing material support to a terrorist organization),[3] Ihab Ali Nawawi (Osama bin Laden’s personal pilot and messenger),[4] the Lucchese crime family (one of the “five families” of the Mafia),[5] and the Westies (an organized crime group operating out of Hell’s Kitchen).[6] At one point, Bianco led the unit prosecuting crimes related to the September 11th terrorist attacks.

At the Department of Justice, Bianco supervised the Counterterrorism Section, the Fraud Section, the Appellate Section, and the Capital Case Unit.[7] During this time, Bianco worked closely with former FBI directors Robert Mueller and James Comey, and current FBI director Christopher Wray.

Jurisprudence

Bianco has served as a judge for the Eastern District of New York since 2006. Approximately 70% of his caseload is civil, while 30% is criminal. From 2008 to 2018, ninety-five of Bianco’s judgments were appealed; only five have been remanded, reversed, or vacated by the reviewing court.

Criminal Law

Since 2011, Judge Bianco has overseen a large number of criminal cases involving MS-13 members. At least one of these cases—that of Josue Portillo, a MS-13 member who plead guilty to a quadruple murder in August 2018—garnered the attention of Trump, who used the case as a rallying cry to crack down on illegal immigration.[8]

Though Portillo was just 15 years-old at the time of the murders, Bianco granted the government’s motion to charge him (as well as the co-defendants in the case) as adults, citing the severity of the crime and inadequacy of the juvenile justice system as partial justifications.[9] In other cases involving MS-13 members, however, Judge Bianco has shown leniency. In the case of Elmer Alexander Lopez, Bianco handed down less than the maximum sentence because the defendant had shown remorse for his actions.[10]

Employment Law

Bianco has a tendency to favor the defendant in employment law cases, fully or partially granting a motion to dismiss 84% of the time.[11] Bianco notably granted a motion to dismiss federal claims in Zarda v. Altitude Express, Inc.[12] In Zarda, the plaintiff claimed he was discriminated against by his employer because of his sexual orientation, arguing that such discrimination was in violation of Title VII’s prohibition of sex discrimination.

Per Second Circuit precedent at that time,[13] Bianco dismissed Zarda’s federal claims but allowed his state claims to proceed to trial. In 2018, the Second Circuit, sitting en banc, overturned decades-old precedent in finding that Title VII’s prohibition of discrimination on the basis of sex necessarily encompasses claims of discrimination based on sexual orientation.

Search & Seizure

Bianco often rules in favor of the state in Fourth Amendment search and seizure cases. In the case of U.S. v. Bailey,[14] Bianco’s ruling on a Summers detainment led to a reversal by the United States Supreme Court.

In Bailey, Bianco held that police validly detained the defendant pursuant to a warrant to search the defendant’s home, despite detaining him about a mile away from his property. Relying on the Summers rule, which allows officers “to detain occupants of the premises while a proper search is conducted,” Bianco held that the detention was valid because it was made “as soon as practicable.”

The Supreme Court reversed Bianco’s decision, holding that detainments pursuant to Summers are “limited to the immediate vicinity of the property to be searched,” further stating that the defendant in the case at hand was “detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question.”[15]

Speeches

Bianco has a long list of speaking engagements, dating back to his early years of practice. He speaks frequently at Federalist Society events on topics such as originalism, judicial restraint, national security, and government enforcement in the private sector.

Originalism

Bianco describes himself as a “really big fan of Justice Scalia,” stating that, “as a judge, I strongly share his originalist or textualist philosophy.”[16] In the last two years, Bianco has spoken at two Federalist Society events celebrating Scalia’s legacy.[17]

National Security

During his career as a prosecutor, Bianco spoke at a number of events, often highlighting the need of military courts and alternative tribunals in terrorism prosecutions. At a March 2007 event titled, “The Role of Terrorism on Judges and Judicial Activism,” Bianco expressed a need for tribunals and alternative judicial forums to try international terrorism cases. During his presentation he stated, “People will say to me, ‘Well, just let it go through the open court system,’ but without that classified evidence, some cases just won’t go very far.”[18]
More recently, at a January 2017 event, Bianco stated that, “[c]ivilian courts are not well-equipped to try terrorists whose terrorist activity takes place entirely, or almost entirely, overseas.” And at an October 2018 event, Bianco spoke about the difficulties of bringing foreign witnesses or classified evidence into U.S. Courts.[19]

Overall Assessment

Bianco has enjoyed an illustrious career prosecuting and overseeing some of the highest-profile terrorism and organized crime cases of his time. While neither home state senator has returned a blue slip for his nomination, Bianco enjoys a unanimous “Well Qualified” rating from the American Bar Association[20] and frequent praise from his colleagues.[21]

Bianco, a self-proclaimed originalist with a record of conservatism on matters of national security and police powers, will likely soon assume a seat on the Second Circuit Court of Appeals.

[1] Sens. Gillibrand, Schumer Object to Federal Court Appointments, Watertown Daily Times, Feb. 17, 2019, https://www.watertowndailytimes.com/news03/sens-gillibrand-schumer-object-to-federal-court-appointments-20190217&.

[2] U.S. v. Haouari, 2001 WL 1154714 (S.D.N.Y. 2001).

[3] U.S. v. Sattar, 2003 WL 22137012 (S.D.N.Y. 2003).

[4] In re: Grand Jury Subpoena of Ihab Ali, 1999 WL 595665 (S.D.N.Y. 1999); see also Nancy Peckenham, Judge Rules Government May Restrict Access to Evidence in Case Tied to Bin Laden, CNN, Nov. 6, 2000, http://www.cnn.com/2000/LAW/11/06/ali.perjury.trial.int/.

[5] U.S. v. Defede, 7 F.Supp.2d 390 (S.D.N.Y. 1998).

[6] U.S. v. Bokun, 73 F.3d 8 (S.D.N.Y. 1995).

[7] United States District Court, Eastern District of New York, Judge Joseph F. Bianco, https://www.nyed.uscourts.gov/content/judge-joseph-f-bianco.

[8] Liz Robbins, MS-13 Gang Member Pleads Guilty in Quadruple Murder Highlighted by Trump, New York Times, Aug. 20, 2018.

[9] U.S. v. Juvenile Male, 327 F. Supp. 3d 573 (E.D.N.Y. 2018).

[10] Michael O’Keefe, MS-13 Member Sentenced to 25 Years for Killing Fellow Gang Member in Brentwood, Newsday, Dec. 18, 2018, https://www.newsday.com/long-island/crime/ms-13-killings-brentwood-1.24712041.

[11] Carmen Castro-Pagan, Know Your Judge: Joseph F. Bianco, Bloomberg Law, April 18, 2018, https://biglawbusiness.com/know-your-judge-joseph-f-bianco.

[12] Zarda v. Altitude Express, Inc., No. 10 Civ. 4334 (oral decision), aff’d, 855 F.3d 76 (2d. Cir. 2017), rev’d en banc, 883 F.3d 100 (2d Cir. 2018).

[13] Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).

[14] Bailey v. U.S., 568 U.S. 186 (2013).

[15] U.S. v. Bailey, 133 S.Ct. 1031, 1042 (2013).

[16] Sen. Comm. on the Judiciary, 115th Cong., Nomination of Joseph Bianco to the U.S. Court of Appeals for the Second Circuit, Questions for the Record, Feb. 20, 2019, https://www.judiciary.senate.gov/imo/media/doc/Bianco%20Responses%20to%20QFRs.pdf.

[17] The Federalist Society, Contributors: Joseph Bianco, https://fedsoc.org/contributors/joseph-bianco (last visited March 1, 2019).  

[18] Columbia Law School, Judge Bianco on Terrorism and the Role of Judges, March 2007, https://www.law.columbia.edu/pt-br/node/83221.

[19] Columbia Law School, Federal Judge Provides Behind-the-Scene Look at Terrorism Cases, Oct. 26, 2018.

[20] American Bar Association, Ratings of Article III and Article IV Judicial Nominees (last visited March 2, 2019), https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.pdf.

[21] James M. Wick, Hon. Joseph Bianco, The Federal Lawyer, Aug. 2018, http://www.fedbar.org/Resources_1/Judicial-Profiles/Judicial-PDFs/Hon-Bianco.aspx.

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