Federal Magistrate Judge Sarah Netburn has a long history as a litigator, handling a number of civil rights cases, as well as a judge, making her an experienced nominee for the federal bench.

Background

Sarah Netburn received her B.A. from Brown University in 1994 and then her J.D. from the University of California at Los Angeles School of Law in 2001. Netburn then clerked for Judge Harry Pregerson on the U.S. Court of Appeals for the Ninth Circuit and then joined Emery Celli Brinckerhoff & Abady LLP as an Associate. In 2010, Netburn shifted to be the Chief Counsel for the Office of Pro Bono Litigation with the Southern District of New York.

In 2012, Netburn became a U.S. Magistrate Judge for the Southern District of New York, where she currently serves.

History of the Vacancy

Netburn has been nominated for a seat on the U.S. District Court for the Southern District of New York. This seat will open on December 31, 2024, when Judge Lorna Schofield takes senior status.

Legal Career

After her clerkship on the Ninth Circuit, Netburn spent the next eight years working at Emery Celli Brinckerhoff & Abady LLP, where she notably represented, alongside the Center for Constitutional Rights, a group of protesters arrested while protesting the war in Iraq. See Jim Dwyer, One Protest, 52 Arrests and a $2 Million Payout, N.Y. Times, Aug. 20, 2008, https://ccrjustice.org/sites/default/files/assets/A7_08.20.08_NYTIMES.pdf.

Among other cases she handled, Netburn represented a group of inmates in the New York City correctional system who alleged that they were subjected to a pattern and practice of excessive force from correctional officers. See Ingles v. Toro, 438 F. Supp. 2d 203 (2d Cir. 2006). Netburn also represented proponents of a marijuana legalization initiative in challenging the rejection of the initiative from the ballot by the Nevada Secretary of State’s Office. See Am. Civil Liberties Union of Nevada v. Lomax, 471 F.3d 1010 (9th Cir. 2006). Netburn has also represented the families of the victims of the Pan Am 103 terrorist attack in suing the Libyan government for supporting the terrorists. See Hurst v. Socialist People’s Libyan Arab Jamahiriya et al., 474 F. Supp. 2d 19 (D.D.C. 2007).

Jurisprudence

Netburn has served as a U.S. Magistrate Judge for the Southern District of New York since her appointment in 2012. As a Magistrate Judge, Netburn handles arraignments, pretrial release, discovery disputes, and settlement. She also writes Reports and Recommendations for District Judges, recommending, for example, that the Afghanistan Central Bank’s funds not be used to compensate the relatives of September 11th victims. See Tia Sewell, Magistrate Judge Recommends Court Reject Efforts to Turn Over Frozen Afghan Funds to 9/11 Families, Lawfare, Aug. 30, 2022, https://www.lawfaremedia.org/article/magistrate-judge-recommends-court-reject-efforts-turn-over-frozen-afghan-funds-911-families.

Among the notable cases that Netburn has presided over, she is presiding over the Securities and Exchange Commission’s lawsuit against Ripple Labs, alleging that Ripple’s trading of cryptocurrency amounted to trading of unregistered securities. See Qadir AK, Good News! Pro-Crypto Judge Netburn Nominated in Ripple vs. SEC Case, CoinPedia, Apr. 25, 2024, https://coinpedia.org/news/ripple-vs-sec-how-sarah-netburns-nomination-could-shape-the-outcome/. In the suit, Netburn has been occasionally critical of the SEC’s litigation positions, ruling against them regarding access to internal agency documents. See Holly Barker, SEC Crypto Woes: Judicial Rebuke and a Critical Commissioner, July 19, 2022, https://news.bloomberglaw.com/litigation/sec-crypto-woes-judicial-criticism-and-a-critical-commissioner.

Overall Assessment

Netburn has, both as an attorney and as a judge, built up significant experience with litigation, including presiding over a fair number of complex cases. As such, Netburn should be favored for a comparatively smooth confirmation to the federal bench.

Former Sotomayor clerk Jeannette Vargas has spent virtually her entire legal career on the civil side of the U.S. Attorney’s Office for the Southern District of New York, which would serve her well if confirmed to be a federal district court judge on that court.

Background

Vargas received her B.A. from Harvard College in 1995 and her J.D. from Yale Law School in 2000. After law school, Vargas clerked for Justice (then Judge) Sonia Sotomayor on the U.S. Court of Appeals for the Second Circuit, before joining Simpson Thatcher & Bartlett. In 2002, Vargas joined the U.S. Attorney’s Office for the Southern District of New York, serving as Deputy Chief of the Civil Division since 2016.

History of the Seat

Vargas has been nominated to the vacancy on the U.S. District Court for the Southern District of New York vacated on August 9, 2023 by Judge Paul Gardephe’s move to senior status.

Political Activity

Vargas has made occasional political donations throughout her career, including donations to Biden and Hillary Clinton.

Legal Career

Vargas has spent virtually her entire legal career with the U.S. Attorney’s Office for the Southern District of New York, where she worked in the civil division (currently serving as Deputy Chief). Among the notable matters she handled, Vargas represented the United States in litigation of Chrysler following the auto bailout in 2008. See In re Chrysler LLC., 576 F.3d 108 (2d Cir. 2009). Vargas also represented the Central Intelligence Agency in defending against Freedom of Information Act (“FOIA”) claims brought by Amnesty International in seeking information about interrogation techniques. See Amnesty Int’l USA v. CIA, 728 F. Supp. 2d 479 (S.D.N.Y. 2010).

In another notable case, Vargas sued a registered sex offender who was employed as a superintendent in various apartment buildings for violating the Fair Housing Act by subjecting numerous tenants to sexual harassment and sexual extortion. See United States v. Barnason, 852 F. Supp. 2d 367 (S.D.N.Y. 2012).

Relating to criminal cases, Vargas also worked to defend against habeas actions challenging denials of release from the federal parole commission. See, e.g., Crutchfield v. United States Parole Comm’n, 438 F. Supp. 2d 372 (S.D.N.Y. 2006).

Vargas’ work has also involved arguing a number of appeals. For example, Vargas defended against suits brought by plaintiffs arguing that they were entitled to student loan forgiveness under the Higher Education Act of 1965, arguing that Judge Loretta Preska correctly dismissed the suits. See De La Mota v. U.S. Dep’t of Educ., 413 F.3d 71 (2d Cir. 2005). However, the Second Circuit reversed, finding that the plaintiffs were presumptively entitled to the student loan forgiveness. See id. at 74.

Most notably, Vargas represented the United States in defending successfully against FOIA claims brought by the New York Times seeking disclosure of CIA training programs in Syria and CIA treatment of detainees post-2001. See New York Times v. United States Dep’t of Justice, 939 F.3d 479 (2d Cir. 2019); New York Times v. CIA, 965 F.3d 109 (2d Cir. 2020).

Overall Assessment

Coming from a fairly conventional background without a record of controversial statements, Vargas’ biggest enemy for confirmation is likely the Senate’s limited calendar. As long as Democrats continue to prioritize judicial confirmations, Vargas should be confirmed in due course.

S.D.N.Y. federal prosecutor Margaret Garnett has worked on a number of prominent cases throughout her career, including one described as the largest criminal tax case in U.S. history. Garnett has now been nominated for the federal bench.

Background

Margaret Garnett received her B.A. from the University of Notre Dame in 1992, an M.A. from Yale University in 1995, and a M. Phil. from Yale University in 1997, before getting a J.D. in 2000 from Columbia Law School. After law school, Garnett joined Wachtell, Lipton, Rosen & Katz as an associate. In 2004, she left to clerk for Judge Gerald Lynch on the U.S. District Court for the Southern District of New York (Lynch was later elevated to the Second Circuit). After her clerkship, Garnett joined the U.S. Attorney’s Office for the Southern District of New York, where she rose to be Chief of Appeals. In 2017, she left to join the New York Attorney General’s Office and subsequently joined the New York City Department of Investigation.

In 2021, Garnett rejoined the U.S. Attorney’s Office for the Southern District of New York, serving initially as deputy U.S. Attorney and then as Special Counsel to the U.S. Attorney since 2023.

History of the Seat

Garnett has been nominated to the vacancy on the U.S. District Court for the Southern District of New York vacated on April 21, 2023 by Judge Vincent Bricetti’s move to senior status.

Legal Career

Garnett started her career as an associate at Wachtell, Lipton, Rosen & Katz, and then as a clerk before becoming a federal prosecutor in New York, where she has spent the vast majority of her career. In her first stint with the U.S. Attorney’s Office, Garnett notably prosecuted “the largest criminal tax case” in American history, covering multiple partners and employees at KPMG, who were indicted with conspiracy and tax evasion. See U.S. v. Stein, 452 F. Supp. 2d 230 (S.D.N.Y. 2006). Garnett also argued before the U.S. Court of Appeals for the Second Circuit. See, e.g., United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007).

In 2017, Garnett left to join the New York Attorney General’s Office and then joined the New York City Department of Investigation. In this role, Garnett was sued by groups challenging the state’s eviction moratorium during the Covid-19 pandemic. See Chrysafis v. Marks, 15 F.4th 208 (2d Cir. 2021).

Writings

During her time with the New York City Department of Investigation, Garnett notably authored a critical report of the New York Police Department’s response to the George Floyd protests, noting that the response “lacked a clearly defined strategy” and that officers lacked training to respond. The 115 page report (available here) detailed multiple officer and civilian injuries, and issues with the response, and recommended that a civilian independent board exercise oversight over the police department, noting that none of the three oversight agencies currently overseeing the NYPD have the ability to bind the department on specific allegations of misconduct.

Overall Assessment

Garnett has a powerful champion in her corner for confirmation in Senate Majority Leader Chuck Schumer. However, while her prosecution-heavy experience is generally less “controversial” in the confirmation process, Garnett may nonetheless draw attention for her critical report of the NYPD and its role in the 2020 protests. It will be interesting to see, how much attention, if any, her writings on that front draw in the confirmation process.

Susman Godfrey partner Arun Subramaniam has spent the last fifteen years at one of New York’s most prominent white shoe law firms. He is now poised to become the first Indian American judge on the U.S. District Court for the Southern District of New York.

Background

Arun Subramanian graduated from Case Western Reserve University in 2001 and then from Columbia Law School in 2004. After graduating, Subramanian clerked for Judge Dennis Jacobs on the U.S. Court of Appeals for the Second Circuit and for Judge Gerard Lynch on the U.S. District Court for the Southern District of New York (Lynch, a former Columbia law professor, would later be elevated to the Second Circuit himself). Subramanian then clerked for Justice Ruth Bader Ginsburg on the U.S. Supreme Court (alongside future federal judges Eric Murphy (Kennedy), Dan Bress (Scalia), and future Senator Mike Lee).

Subramanian then joined the firm of Susman Godfrey, where he still serves as a partner.

History of the Seat

Subramanian has been tapped for a seat on the U.S. District Court for the Southern District of New York to a seat vacated by Judge Alison Nathan’s elevation to the Second Circuit on March 31, 2022. He was recommended for the position by Senate Majority Leader Chuck Schumer. See Tim Balk, Chuck Touts Three Judges for Fed Courts, Daily News, June 10, 2022.

Legal Career

Subramanian has spent his entire legal career post-clerkship at the firm of Susman Godfrey, where he has worked primarily in commercial litigation and advisory work. Subramanian’s work also included bankruptcy cases. See, e.g., Buchwald Capital Advisors LLC v. JP Morgan Chase Bank, N.A., 447 B.R. 170 (S.D.N.Y. Bankr. 2011).

Notably, Subramanian represented a class of plaintiffs suing Barclays and other banks for manipulating interest rates. See Maureen Farrell, Barclays Not Alone in Rate-Fixing Scandal, CNNMoney.com, July 3, 2012. Subramanian also represented the parents of DNC staffer Seth Rich in a suit against Fox News alleging that the network’s promotion of conspiracy theories about Rich’s death intentionally caused them emotional distress. See Rich v. Fox News Network LLC., 939 F.3d 112 (2d Cir. 2019).

In other matters, Subramanian has represented parties on the appellate level in New York state courts, see, e.g., Transparent Value, LLC v. Johnson, 93 A.3d 599 (N.Y. App. Div. 2012), and on the federal level. See, e.g., Gelboin v. Bank of Am. Corp., 823 F.3d 759 (2d 2015). Notably, Subramanian argued before the Federal Circuit, convincing the court to reverse the dismissal of a patent infringement action. See BASCOM Global Internet Servs. V. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016).

Writings and Statements

In his role as an attorney, Subramanian has occasionally commented in the media. For example, as part of his role in the Barclays lawsuit, Subramanian was quoted in an article discussing the manipulation of interest rates by big banks. See James O’Toole, Big Banks at Center of Interest Rate Probe, CNNMoney.com, Mar. 11, 2012. See also James O’Toole, Lawsuits Against Banks Loom in Libor Scandal, CNNMoney.com, July 6, 2012.

Political Activity

Subramanian has been a frequent donor to Democratic party candidates for office, giving more than $58000 over the last fifteen years, including a $10000 contribution to Governor Kathy Hochul’s campaign in 2022.

Overall Assessment

With a star-studded resume and extensive experience with the commercial litigation that makes up a large part of the Southern District of New York’s docket, Subramanian makes for a qualified, if conventional, judicial nominee.

Dale Ho has spent the past fifteen years litigating voting rights cases in state and federal courts, racking up both victories and defeats in the process. Ho has now been tapped for the U.S. District Court for the Southern District of New York.

Background

Dale Ho graduated from Princeton University in 1999 and then from Yale Law School. After graduating, Ho clerked for Judge Robert S. Smith on the New York Court of Appeals and for Judge Barbara Jones on the U.S. District Court for the Southern District of New York.

Ho then joined the firm of Fried Frank Harris Shriver & Jacobsen and then worked at the NAACP Legal Defense and Educational Fund. In 2013, Ho joined the American Civil Liberties Union, where he currently serves as Director of the Voting Rights project.

History of the Seat

Ho has been tapped for a seat on the U.S. District Court for the Southern District of New York to a seat vacated by Judge Katherine Forrest, who resigned from the Southern District on September 11, 2018. On December 2, 2019, the Trump Administration nominated DOJ career official Iris Lan to fill the vacancy, but Lan was blocked from confirmation due to opposition from liberal groups over Lan’s role in reassigning an official critical of the Administration’s child separation policies.

Senate Majority Leader Chuck Schumer recommended Ho for the Southern District of New York in June 2021. Ho was nominated for the court on September 30, 2021.

Legal Career

Other than a short stint at Fried Frank, Ho has spent his entire career as a voting rights attorney, including litigating some of the most significant voting rights cases in the past decade.

Notably, Ho has litigated against voting restrictions passed by state legislatures across the country. He successfully obtained an injunction against a North Carolina bill eliminating same-day voter registration. League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014). Ho has also litigated against Wisconsin’s photo ID requirement for voters, successfully obtaining a district court injunction against the law, which was stayed by the Seventh Circuit. Frank v. Walker, 769 F.3d 494 (7th Cir. 2014).

Most notably, Ho managed to convince a federal judge to overturn a Kansas law requiring documentary proof of citizenship for voter registration. See Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016. See also Fish v. Schwab, 957 F.3d 1105 (10th Cir. 2020). The lawsuit notably led to sanctions against Kansas Secretary of State Kris Kobach, after Judge Julie Robinson found that he failed to ensure compliance with her orders.

More recently, Ho represented Common Cause in fighting President Trump’s lawsuit seeking to overturn Pennsylvania’s mail-in voting plan implementation, a suit rejected by Judge Nicholas Ranjan. Trump v. Boockvar, 493 F. Supp. 3d 331 (W.D. Pa. 2020).

Outside of the voting rights context, Ho represented the NAACP as an amicus group in the litigation over California’s ban on same-sex marriage. See Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011).

Writings

In his role as Director of the Voting Rights Project, Ho has written and spoken extensively on voting rights law and policy in the United States. His statements have generally criticized the Supreme Court for narrowing voting rights enforcement and permitting legislatures to restrict voting access. For example, after the Supreme Court’s 2013 decision in Shelby County v. Holder, which invalidated the Section 5 preclearance formula of the Voting Rights Act, Ho noted that the decision eliminated “a powerful tool to deter the adoption or prevent the implementation of discriminatory voting laws in those parts of the country where voting discrimination had proved stubbornly persistent.” Dale E. Ho, Voting Rights Litigation After Shelby County: Mechanics and Standards in Section 2 Vote Denial Claims, 17 N.Y.U. J. Legis. & Pub. Pol’y 675 (2014). He also described advocates’ efforts to use Section 2 to combat voter restrictions, discussing the challenges of such an approach. See Dale Ho, Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Since Shelby County, 127 Yale L.J. 799 (February 8, 2018). Ho has also been critical of “formalism” in interpreting the Voting Rights Act (relying on bright-line rules rather than more flexible balancing tests), arguing that bright-line rules do not serve the stated goals of judicial efficiency and race neutrality. Dale Ho, Two Fs for Formalism: Interpreting Section 2 of the Voting Rights Act in Light of Changing Demographics and Electoral Patterns, 50 Harv. L. C.R.-C.L. L. Rev. 403 (Summer 2015).

This is not to say that Ho’s writings always take a maximalist position on voting rights. In a 2013 article on majority-minority districting, Ho notes that “in places where racial polarization has declined substantially, critics of minority vote dilution doctrine have raised valid questions as to whether majority-minority districts remain necessary…” Dale Ho, Beyond the Red, Purple, and Blue: Essay: Minority Vote Dilution in the Age of Obama, 47 U. Rich. L. Rev. 1041, 1075 (March 2013). In the same article, Ho nonetheless notes that majority-minority districting is necessary in much of the country despite progress made elsewhere. Id.

In other matters, Ho appeared on NPR on behalf of the NAACP in 2012 to distinguish First Amendment precedent that protected NAACP members in the 1950s from the current push by conservative groups to shield their donors. Peter Overby, Conservatives Invoke NAACP Case in Fight for Secret Donors, NPR Weekend Edition, Dec. 30, 2012.

Overall Assessment

Given his prominence in the voting rights movement, as well as his youth, and the likelihood of his elevation to the appellate bench, it would not be surprising to see Ho attract strong conservative opposition, just as fellow voting rights attorney Myrna Perez did on her nomination to the Second Circuit. Nonetheless, Ho remains favored to overcome that opposition and be confirmed in the next few months.