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)