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.

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.

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).

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.

Judge Richard Sullivan – Nominee to the U.S. Court of Appeals for the Second Circuit

When the 43 year old Sullivan was confirmed to the U.S. District Court for the Southern District of New York in 2007, legal observers predicted that the young judge would go far. However, the election of President Obama in 2008 short-circuited Sullivan’s expected rise to the Second Circuit (and potentially further).  Now, ten years later, the 54-year-old conservative is getting the long-delayed promotion.

Background

A native New Yorker, Richard Joseph Sullivan was born in Manhasset on April 10, 1964.  Sullivan received his B.A. from the College of William & Mary in 1986 and his J.D. from Yale Law School in 1990.[1]  After graduating, Sullivan clerked for Judge David Ebel on the U.S. Court of Appeals for the Tenth Circuit and then joined the New York firm Watchell Lipton Rosen & Katz as an associate.

In 1994, Sullivan joined the U.S. Attorney’s Office for the Southern District of New York, working as a prosecutor for the next 11 years.  In 2005, Sullivan joined Marsh Inc. as General Counsel.[2]  Two years later, President George W. Bush nominated Sullivan to be a judge on the U.S. District Court for the Southern District of New York, filling the seat opened by Judge Michael Mukasey’s move to senior status.  Sullivan was unanimously confirmed by the U.S. Senate on June 28, 2007.  Sullivan currently serves in that capacity.

History of the Seat

Sullivan 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 Richard Wesley, who moved to senior status on August 1, 2016.

In March 2017, Sullivan was contacted by the White House to gauge his interest in the Second Circuit.[3]  Sullivan’s name was suggested to Schumer and Gillibrand as one of four potential nominees for the Second Circuit.[4]  Once approved, Sullivan began the nomination process in November 2017 and was nominated on May 7, 2018.

Legal Career

Sullivan has spent the most significant portion of his pre-bench career as a federal prosecutor.  Notably, Sullivan served as head of the Narcotics Unit at the U.S. Attorney’s Office for the Southern District of New York.  As such, Sullivan prosecuted a number of cases involving international drug trafficking, drug-related organized crimes, and drug-related corruption cases.[5]

From 2005 to 2007, Sullivan served as Deputy General Counsel for Litigation at Marsh & McLennan Companies, Inc. and then as General Counsel at Marsh, Inc.  In this role, Sullivan managed the in-house legal team at Marsh, a large insurance broker.

Jurisprudence

Sullivan has served as a federal trial judge for approximately eleven years.  His record on the bench is generally conservative, particularly on criminal issues.[6]  One observer has noted that the assignment of a criminal case to Sullivan strikes “fear into defense attorneys and their Wall Street clients…”[7]  Notably, New York federal prosecutors were criticized by the Second Circuit for maneuvering to keep criminal cases before Judge Sullivan rather than risk a random assignment to another judge.[8]  Below are some notable decisions by Sullivan in Constitutional cases:

Lederman v. New York City Department of Parks & Recreation[9] –  In this case, two visual artists who usually sold their works on New York sidewalks challenged an ordinance that limited the sales of expressive works to certain designated spots.  Sullivan upheld the restrictions, finding that they were narrowly tailored to achieve the government’s interest in “alleviating congestion and improving circulation” in parks and sidewalks.[10]  Sullivan’s decision was itself upheld by the Second Circuit.[11]

Nnebe v. Daus[12] – This case (and its successors) were challenges to New York’s policy of suspending the licenses of taxi drivers summarily after their arrest for certain enumerated crimes.  The plaintiffs argued that, by not providing them with a hearing prior to the suspension, New York had deprived them of their rights under the Due Process Clause.  They also argued that their rights were violated due to the inadequacies of the notice of the suspension and the post-suspension hearing.  Sullivan held that the hearings (or lack thereof) did not violate the plaintiff’s substantive or procedural due process rights.  He held, however, that the notice was inadequate, but declined to impose either injunctive relief or damages beyond nominal damages.

United States v. Scott[13] – This was a criminal case involving the Defendant’s unlawful re-entry after deportation.  Lacey Scott was born in Jamaica to unmarried parents.  His father later immigrated to the United States and Scott joined him under his legal custody.  Scott’s father later became a naturalized citizen, and a few years later, Scott was convicted of multiple felonies and deported to Jamaica.  In the proceedings before Sullivan, Scott argued that he should have received “derivative citizenship” by being a minor in the lawful custody of a U.S. citizen parent.  Sullivan held that Scott did not receive derivative citizenship because the statute does not extend such citizenship to children whose parents did not have a “legal separation.”  Furthermore, Sullivan rejected an Equal Protection Challenge to the statute, holding that “Congress had a rational basis here for distinguishing between legitimate (or legitimated) and illegitimate children.”[14]

United States v. Torres[15] – This case questioned whether officers had reasonable suspicion to stop and frisk the Defendant.  Sullivan found that the officers had reasonable suspicion for both the stop and the search where the defendant was in a high-crime area and ran away from the police.  In doing so, Sullivan rejected the Defendant’s argument that it was reasonable to run from plain-clothes officers where they failed to identify themselves as police.

United States v. Ortiz[16] – This case involved the suppression of incriminating statements made by the Defendant after officers threatened to arrest the Defendant’s mother and aunt.  Sullivan found that the threat rendered the subsequent statements involuntary and suppressed them.  However, he declined to suppress additional incriminating statements made by the Defendant in a later interview at the precinct, finding that sufficient time had elapsed since the threat to make the statements voluntary.

Overall Assessment

There is little doubt that Sullivan is well-qualified for a seat on the Second Circuit.  There is also little doubt that, if confirmed, Sullivan would add a new conservative voice to the Second Circuit, particularly on criminal issues.  Given the support that Sullivan has received from the influential Schumer and Gillibrand, it is likely that he will be confirmed before the end of the year.  The only question is whether that confirmation will look anything like his unanimous approval eleven years ago.


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

[2] See id. at 2.

[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] See, e.g., United States v. Martinez, 464 F.3d 184 (2d Cir. 2006); United States v. Magana, 322 F. Supp. 2d 359 (S.D.N.Y. 2004); United States v. Madrid, 302 F. Supp. 2d (S.D.N.Y. 2003); United States v. Maisonet, 213 F.3d 637 (S.D.N.Y. 2001).

[6] See Charles Levinson, Tough Judge Richard Sullivan’s Rulings Are in the Spotlight, The Wall St. Journal, April 30, 2014, https://www.wsj.com/articles/tough-judge-richard-sullivans-rulings-are-in-the-spotlight-1398898973.

[7] See id.

[8] See Alison Frankel, Judge-Shopping Accusations Resurface Against Manhattan Federal Prosecutors, Reuters, June 15, 2017, https://www.reuters.com/article/us-otc-shopping/judge-shopping-accusations-resurface-against-manhattan-federal-prosecutors-idUSKBN1962Q9.  

[9] 901 F. Supp. 2d 464 (S.D.N.Y. 2012), aff’d, 731 F.3d 199 (2d Cir. 2013).

[10] See id. at 475.

[11] See 731 F.3d 199 (2d Cir. 2013).

[12]184 F. Supp. 3d 54, 72 (S.D.N.Y. 2016), appeal dismissed, (May 25, 2016),

[13] 919 F. Supp. 2d 423 (S.D.N.Y. 2013).

[14] Id. at 431.

[15] 252 F. Supp. 3d 229 (S.D.N.Y. 2017)

[16] 943 F. Supp. 2d 447 (S.D.N.Y. 2013)