State Judge Marian Gaston, who has spent all of her pre-bench career as a public defender, has now been nominated to the federal bench in San Diego.

Background

Marian Gaston received a Bachelor of Arts from Emory University in 1993 and then a Juris Doctor from UC Berkeley School of Law in 1996.

Gaston then joined the San Diego County Public Defender’s Office. She held that position until Governor Edmund Brown appointed Gaston to the San Diego County Superior Court in 2015, where she currently serves.

History of the Seat

Gaston has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on August 1, 2021, by Judge William Hayes’ move to senior status.

Legal Experience

Before she was appointed to the state bench, Gaston spent nineteen years, her entire legal career, as a public defender.in San Diego. Among the cases she handled there, Gaston represented Jason Williams, who pleaded guilty to a hate crime for attacking a black neighbor with a flamethrower. See Escondido Man Sentenced to Prison for Hate Attack, A.P. State & Local Wire, June 28, 2000.

In other matters, Gaston represented Matthew Hedge, who was alleged with violating his release as a sexually violent prisoner. See Kelly Wheeler, Polygraph Expert: Sexually Violent Predator Lied During Routine Test, City News Service, Dec. 9, 2009. She also represented Philong Huynh, charging with sexually assaulting multiple heterosexual men in San Diego’s Gaslamp Quarter, and with killing one. See Kelly Wheeler, Prosectuor: Accused Killer Targeted Heterosexual Men, City News Service, June 1, 2011.

Jurisprudence

Since 2015, Gaston has served as a judge on the San Diego Superior Court. In this role, she presides over trial court matters in criminal, civil, family, and other state law matters. Among the cases she handled, Gaston terminated the parental relationships for juvenile M.P., finding that the father’s drug addiction and the mother’s inability to care for the minor justified termination, a decision that was upheld on appeal. See In re M.P., 2021 WL 1960088 (Cal. App. 4th May 17, 2021).

Writings

In 2000, Gaston was interviewed about her work as a public defender by Renee Harrison. Renee Harrison, Part Two: Domestic Violence: Representing Defendants in Domestic Violence Prosecutions: Interview with a Public Defender, 11 J. Contemp. Legal Issues 63 (2000). The interview focused specifically on domestic violence cases, and, during the interview, Gaston elaborated on her strategies for fighting and winning domestic violence cases. In the interview, Gaston criticizes mandatory arrest for domestic violence, stating that such laws place the burden of arrest on men. See id. (“The police always arrest men, so men are usually the ones on trial.”). Gaston also defended individuals charged with domestic violence, noting:

“Most of the men cry over what has happened. About half of our clients are in mutually abusive, pathetic relationships. Both people in the relationship are alcoholics or drug addicts, and/or emotionally undeveloped, and/or uncommunicative.” Id. i

Political Activity

Gaston has made a handful of political contributions during her time as a public defender, including one to President Obama in 2008.

Overall Assessment

With over 25 years of legal experience, Gaston certainly has the base level of qualifications to be a federal judge. She will likely draw opposition for her time in public defense and some may draw questions as well about her statements on domestic violence, although Gaston can reasonably argue that she was speaking as part of her role as an advocate.

The U.S. District Court for the Southern District of California has brought in four new judges since President Biden came to office. Biden is hoping to make it six with the nominations U.S. Magistrate Judge Andrew Schopler and San Diego County Superior Court Judge James Simmons.

Background

A Los Angeles native, James Edward Simmons Jr. received a B.A. from the University of California Berkeley in 2001 and a J.D. from the Golden Gate University School of Law in 2004. After a year in the San Diego City Attorney’s Office, Simmons worked as a state prosecutor in San Diego for eleven years.

In 2017, Gov. Jerry Brown appointed Simmons to the San Diego County Superior Court. Simmons is currently a judge with the court.

History of the Seat

Simmons has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on March 31, 2021, by Judge Anthony Battaglia’s move to senior status.

Legal Experience

Other than a year at the City Attorney’s Office, Simmons spent his entire pre-bench career at the San Diego County District Attorney’s Office as a state prosecutor. Among the matters he prosecuted there, Simmons handled the charges against Franklin Gatlin, who was charged with stabbing the victim three times at a sushi restaurant. See No Headline in Original, City News Service, Jan. 10, 2007. He also handled the case of Jerry McCluney, charged with shooting and beating his uncle. See Kelly Wheeler, Bail Stays at $1 Million For Man Accused of Shooting, Beating Uncle, City News Service, Apr. 29, 2008.

Notably, Simmons prosecuted Alexander “Piggy” Antunez for shooting and killing Valentin Madrigal. See Kelly Wheeler, Gang Member Who Fatally Shot Rival in 2005 Gets 17-Year Prison Sentence, City News Service, Sept. 1, 2010. Simmons also prosecuted Dontaye Craig, Frederick Robinson, and Rashad Scott for firing shots at rival gang members that struck and killed a bystander. See James R. Riffel, Two to Stand Trial for Killing of Bystander in Gaslamp, City News Service, Oct. 3, 2011. After a jury trial, all three defendants were convicted. See Kelly Wheeler, Gang Members Convicted in 2009 Death of Woman Celebrating 21st Birthday in Gaslamp, City News Service, Sept. 17, 2012.

Jurisprudence

Since 2017, Simmons has served as a judge on the San Diego Superior Court. In this role, he presides over trial court matters in criminal, civil, family, and other state law matters. Among his notable cases as a judge, Simmons sentenced John Dupree Johnson to six years in prison after driving while intoxicated in a manner that caused the death of a 70 year old pedestrian. See Man Sentenced to Six Years in Prison For Fallbrook DUI Freeway Fatality, City News Service, Nov. 5, 2020.

Overall Assessment

While still fairly young for a federal judicial appointment, Simmons has built up a record of legal service in the San Diego community and would likely attract little controversy in his confirmation.

The U.S. District Court for the Southern District of California has brought in four new judges since President Biden came to office. Biden is hoping to make it six with the nominations of state judge James Simmons and U.S. Magistrate Judge Andrew Schopler.

Background

Andrew George Schopler received his B.A. summa cum laude from Dartmouth College in 1994. Schopler then received a J.D. from Harvard Law School in 1997 and spent a year as a solo practitioner and a public defender in Chapel Hill, North Carolina before joining Rudolf and Maher.

In 2004, Schopler became a federal prosecutor with the U.S. Attorney’s Office for the Southern District of California. Schopler stayed with the office until his appointment in 2016 to become a U.S. Magistrate Judge on the Southern District of California.

History of the Seat

Schopler has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on January 22, 2021, by Judge Larry Burns’ move to senior status.

Legal Experience

Schopler started his legal career in North Carolina, practicing criminal defense both as a public defender and in private practice taking court appointed cases. Among the cases he handled in North Carolina, Schopler successfully persuaded the North Carolina Court of Appeals to reverse Jimmy Harris’ conviction for First Degree Murder, finding that the trial court had erroneously allowed the state to cross-examine the defendant regarding a fifteen year old aggravated battery conviction. See State v. Harris, 562 S.E.2d 547 (N.C. App. 2002).

As a federal prosecutor in San Diego, Schopler prosecuted drug crimes. See, e.g., Hells Angel Gets Two-Decade Prison Term for Dealing Meth, City News Service, Dec. 3, 2012. Notably, he worked on Operation Dog Pound, a wiretapping investigation targeting methamphetamine and crack cocaine trafficking in San Diego. See Operation Dog Pound Defendant Sentenced to 20 Years in Prison, States News Service, Sept. 12, 2011. He also prosecuted public corruption cases. See, e.g., Mexican Businessman, Two Others, Convicted in Scheme to Funnel Money Into 2012 Mayoral Campaigns, City News Service, Sept. 9, 2016.

Schopler also had the opportunity to brief and argue appeals as a federal prosecutor. For example, Schopler successfully defended against motions to suppress in a border patrol agent search case at both the trial and appellate levels. Compare United States v. Reyes-Bosque, 463 F. Supp. 2d 1138 (S.D. Cal. 2006) with United States v. Reyes-Bosque, 596 F.3d 1017 (9th Cir. 2009). See also United States v. Navarro, 608 F.3d 529 (9th Cir. 2010) (affirming conviction for importing heroin and possession with intent to distribute).

Jurisprudence

Since 2016, Schopler has served as a U.S. Magistrate Judge on the Southern District of California. In this role, he presides over pretrial, trial, grand jury and discovery matters. Among the notable matters he has handled as a magistrate, Schopler recommended the denial of a habeas petition filed by California inmate Hussein Ibrahim, finding them to be untimely. See Ibrahim v. Fox, 2018 U.S. Dist. LEXIS 16747 (S.D. Cal. Jan. 25, 2018). This report was adopted by Judge Roger Benitez, who stated that the report was “thoughtful and thorough.” See Ibrahim v. Fox, 2018 U.S. Dist. LEXIS 27091, at *2 (S.D. Cal. Feb. 20, 2018).

In another case, Schopler declined to dismiss a prisoner’s civil rights claim for failure to exhaust, ruling that the allegation that a guard had threatened the plaintiff to get him to drop his administrative appeals was sufficient to excuse any failure to exhaust. See Mitchell v. Silva, 2020 U.S. Dist. LEXIS 129369 (S.D. Cal. July 21, 2020).

Political Activity

Schopler has a handful of political donations to his name, all to Democrats, including Sen. John Edwards of North Carolina.

Overall Assessment

With twenty-five years of legal experience and six years on the bench, Schopler will likely be deemed as close to a consensus nominee as can be found this Congress. He will likely have a smooth confirmation, calendar permitting.

The U.S. District Court for the Southern District of California is currently short seven judges, with the shortfall affecting caseloads and dockets. As such, the Biden Administration’s nomination of San Diego Superior Court Judge Jinsook Ohta likely couldn’t come soon enough.

Background

Jinsook Ohta attended Yale University and New York University Law School before clerking for Judge Barry Moskowitz on the U.S. District Court for the Southern District of California.

After her clerkship, Ohta became an Associate with O’Melveny & Myers and then with Sheppard Mullin. In 2011, Ohta became an Assistant Attorney General with the California Attorney General’s Office, staying with the Office until Gov. Gavin Newsom appointed her to the San Diego County Superior Court in 2020. Ohta is currently a judge with the court.

History of the Seat

Ohta has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on January 23, 2019, by Judge Barry Moskowitz’s move to senior status.

Upon the recommendation of California Senators Dianne Feinstein and Kamala Harris, on October 17, 2019, the Trump Administration nominated Jones Day Partner Shireen Matthews to fill this vacancy. While Matthews was unanimously approved by the Senate Judiciary Committee in July 2020, her nomination was never given a floor vote by Senate Majority Leader Mitch McConnell, leaving the vacancy open to this day.

Legal Experience

Ohta started her career as a clerk for Judge Barry Moskowitz on the U.S. District Court for the Southern District of California. After that role, Ohta moved to the firms of O’Melveny & Myers and Sheppard Mullin.

However, Ohta spent the most significant portion of her career in the Consumer Protection Division of the California Attorney General’s Office. Among the matters she handled there, Ohta was able to negotiate a $90 million judgment against GlaxoSmithKline for deceptive claims made while marketing GSK Diabetes Products. See People v. GlaxoSmithKline, LLC, 2012 Cal. App. LEXIS 1355.

In one of the most notable cases she handled with the office, Ohta secured a $344 million judgment against Johnson & Johnson for deceptive marketing regarding the dangers of mesh vaginal implants. The judgment was the result of a bench trial in front of Superior Court Judge Eddie Sturgeon.

In another notable matter, Ohta secured a $280 million judgment against Dish Network for violating federal and state Do-Not-Call laws. See United States v. Dish Network LLC, 256 F. Supp. 3d 810 (C.D. Ill. 2017). The judgment was largely affirmed by the Seventh Circuit on appeal. United States v. Dish Network LLC, 954 F.3d 970 (7th Cir. 2020).

Jurisprudence

Since 2020, Ohta has served as a judge on the San Diego Superior Court. In this role, Ohta presides over trial court matters in criminal, civil, family, and other state law matters. Ohta’s brief tenure does not reveal enough about her judicial philosophy.

Overall Assessment

There is little in Ohta’s background that is likely to cause controversy. As such, one can expect that she will likely be confirmed comfortably, likely in early 2022.

The U.S. District Court for the Southern District of California is facing a vacancy crisis, currently short seven judges. Having gotten to a slow start, the Biden Administration nominated its first two nominees to the Court a couple of weeks ago, including magistrate judge Linda Lopez.

Background

Linda Lopez was born in Miami and grew up in Hialeah, Florida in a Cuban American family. Lopez worked at small practice firms in Florida during and after high school and attended community college while working full time as a legal secretary and paralegal. Lopez was eventually able to transfer and graduate magna cum laude from Florida International University in 1996. Lopez then received a J.D. from the University of Miami Law School in 1999 and started work as a criminal defense attorney in Miami.

In 2007, Lopez moved to the Federal Defender’s Office for the Southern District of California. Lopez stayed with the office until her appointment in 2018 to become a U.S. Magistrate Judge on the Southern District of California.

History of the Seat

Lopez has been nominated to the U.S. District Court for the Southern District of California, to a seat vacated on December 31, 2017, by Judge Roger Benitez’s move to senior status.

On November 21, 2019, the Trump Administration nominated federal prosecutor Adam Braverman to fill this vacancy. However, Braverman never received a hearing before the Senate Judiciary Committee and his nomination was left unconfirmed at the end of the Trump Administration.

Legal Experience

Lopez started her legal career in Miami, practicing criminal defense both at a small firm and as a solo practitioner. She then spent eleven years at the Federal Defenders in San Diego, where she represented indigent defendants before the U.S. District Court for the Southern District of California and the Ninth Circuit.

Among the cases she handled in Miami, Lopez represented Wilfredo Rodriguez, who was convicted by a jury of a series of drug offenses. See United States v. Rodriguez, 159 F. App’x 900 (11th Cir. 2005). Lopez challenged the sentence on appeal, arguing that the district court erred by admitting co-conspirator statements and prior convictions in the sentencing. While the Eleventh Circuit found the issue to be a “close question” it ultimately found no error and affirmed. Id. at 902.

Among the prominent matters Lopez handled as a Federal Defender, she represented Sergio Caballero, accused of trafficking methamphetamine over the U.S.-Mexico border. Lopez challenged the introduction of evidence found on Caballero’s cellphone under the Fourth Amendment, but Judge Roger Benitez ruled that it was admissible under the border search doctrine. See United States v. Caballero, 178 F. Supp. 3d 1008 (S.D. Cal. 2016).

Jurisprudence

Since 2018, Lopez has served as a U.S. Magistrate Judge on the Southern District of California. In this role, Lopez presides over pretrial, trial, grand jury and discovery matters. Among the notable matters she has handled as a magistrate, Lopez was asked to rule over the enforcement of Drug Enforcement Administration subpoenas against the State of California seeking cannabis licenses, license applications, and shipping manifests. The State sought to quash the subpoenas, arguing that the DEA had failed to make the requisite showing of relevance. However, Lopez ruled against the state, ordering California to turn over the relevant records.

Overall Assessment

While several of Biden’s nominees with indigent defense backgrounds have drawn opposition, Lopez is less likely to draw opposition for a few reasons. Firstly, Lopez has experience as a magistrate judge and her record as a judge is fairly mainstream. Furthermore, she has little controversy throughout her career and has a compelling personal story of success. While this does not suggest that Lopez will not draw opposition (even the most uncontroversial nominees in the last year have drawn no votes from a sizable block of senators), it does indicate that Lopez is likely to see a swift and bipartisan confirmation.