Jennifer Rearden – Nominee to the U.S. District Court for the Southern District of New York

In 2020, upon the recommendation of Democratic Senator Kirsten Gillibrand, the Trump Administration nominated Jennifer Rearden to the U.S. District Court for the Southern District of New York.  Rearden was, however, not confirmed before the end of the Administration.  She now has a second chance after being renominated by Biden.

Background

50-year-old Jennifer Hutchison Rearden received her B.A. from Yale University in 1992 and a J.D. in 1996 from New York University School of Law.  After law school, Hutchison joined Davis Polk & Wardwell, before moving to the Atlanta office of King & Spalding.  Since 2003, Rearden has been a Partner with Gibson, Dunn & Crutcher in New York City.

History of the Seat

Rearden has been nominated to the vacancy on the U.S. District Court for the Southern District of New York vacated on October 25, 2018 by Judge Richard Sullivan’s elevation to the U.S. Court of Appeals for the Second Circuit.  Rearden was previously nominated for this vacancy by President Trump on February 12, 2020 but was not confirmed by the Senate. Rearden was renominated by Biden on January 19, 2022.

Political Activity

Rearden has been an active political donor, having made over thirty political contributions over the last thirteen years.[1]  While Rearden has given to politicians of both parties (her Republican donees include Rudolph Giuliani and Chris Christie), most of her donations have been to Democrats.[2]  She has contributed particularly to female Democratic senators and senate candidates, giving them almost $12000 in the 2016 cycle.[3]

Legal Career

Rearden has spent her entire career in private practice, working at various big law firms as a commercial litigator.  Specifically, Rearden has handled a number of complex commercial cases, including matters related to tax, contract, and compliance matters.[4]

Among her more prominent cases, Rearden represented Philip Morris Inc. and other tobacco companies in a suit against the City of New York challenging the City’s regulation of tobacco prices.[5]  She also represented Home Depot in an Arizona suit involving tax deductions.[6]

Notably, Rearden argued in New York State Court a suit seeking Worker’s Compensation benefits for an employee’s domestic partner (through a civil union).[7]  The Appellate Division of the New York Supreme Court found, in a divided opinion, that statutory provisions supporting worker’s compensation benefits for surviving spouses did not cover partners in a civil union.[8]

Rearden’s nomination has drawn criticism from Rep. Rashida Tlaib for her alleged role in the prosecution against Steven Donziger.[9]  Donziger, an environmental lawyer, had obtained a $9.5 billion judgment against Chevron for environmental damages in Ecuador, leading to Chevron pulling their assets from that country and suing Donziger in New York for racketeering.[10]  The latter suit eventually led to criminal contempt charges when Donziger refused to follow a court order to surrender his electronic devices, arguing that they contained confidential client information.[11]  While Tlaib’s statement, a tweet by Donziger, and the related article suggests that Rearden was among the Gibson attorneys who sued Donziger, a search of the case documents does not show Rearden’s name.  The key opinion instead identifies five other Gibson attorneys.  Additionally, there appears to be no evidence on the case’s PACER record of Rearden entering an appearance in the case.

Writings

Rearden has been a fairly prolific author, frequently writing articles on various legal issues, including issues of civil practice, procedure, and substantive law.

For example, Rearden has written on the Columbia Pictures v. Bunnell ruling in the Central District of California, which held that random access memory (RAM) could be discoverable material that needed to be preserved in preparation for litigation.[12]  She has similarly expounded on a similar decision by Judge Shira Scheindlin on production of metadata during discovery.[13] 

Overall Assessment

While Rearden was not confirmed under Trump, she has a strong chance under the current Administration.  While she is likely to draw the requisite opposition from the right that all Biden nominees are drawing, Rearden may also see some liberal opposition based on her time at Gibson Dunn and her perceived role in the Donziger prosecution.


[2] See id.

[3] Id.

[5] See Nat’l Ass’n of Tobacco Outlets v. City of New York, 27 F. Supp. 3d 415 (S.D.N.Y. 2014).

[6] Home Depot USA, Inc. v. Ariz. Dep’t of Rev., 230 Ariz. 498 (Ariz. Ct. App. Div. 1 2012).

[7] Matter of Langan v. State Farm Fire & Cas., 48 A.D.3d 76 (N.Y. Sup. App. Div. 2007).

[8] See id. at 78-79.

[9] Zack Budryk, Tlaib Blasts Biden Judicial Nominee Whose Firm Sued Environmental Lawyer, The Hill, Jan. 21, 2022, https://thehill.com/policy/defense/590819-tlaib-blasts-biden-judicial-nominee-whose-firm-sued-environmental-lawyer. 

[10] See id. 

[11] See id. 

[12] Jennifer H. Rearden and Farrah Pepper, Oh No, Ephemeral Data, N.Y. Law Journal, Mar. 22, 2010, https://www.gibsondunn.com/wp-content/uploads/documents/publications/Rearden-Pepper-OhNoEphemeralData.pdf.  

[13] Jennifer Rearden, Farrah Pepper, and Adam Jantzi, Scheindlin’s ‘Day Laborer’ Decision: Much Ado About Metadata, Law Technology News, Feb. 22, 2011, https://www.gibsondunn.com/wp-content/uploads/documents/publications/Rearden-%20Pepper-%20Scheindlin%27s-Day-Laborer%27-Decision-LTN-2-22-11.pdf.

Jessica Clarke – Nominee to the U.S. District Court for the Southern District of New York

Civil rights attorney Jessica Clarke, currently with the New York Attorney General’s Office, is President Biden’s second nomination to the Southern District of New York.

Background

The 38 year old Clarke gained her undergraduate degree from Northwestern University in 2005 and then gained a J.D. from the Ohio State University Moritz College of Law in 2008.

After graduating, Clarke clerked for Judge Solomon Oliver on the U.S. District Court for the Northern District of Ohio. Clarke then joined the Department of Justice, working in the Civil Rights Division during the Obama Administration. In 2016, Clarke left to join the civil rights firm Emery Celli Brinckerhoff & Abady. In 2019, Clarke joined the New York Attorney General’s Civil Rights Bureau as Chief, where she currently works.

History of the Seat

Clarke 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 Colleen McMahon, who took senior status on April 21, 2021. Clarke was recommended by Senate Majority Leader Chuck Schumer on September 1, 2021 and was nominated on December 15, 2021.

Legal Career

Clarke started her post-clerkship career at the Civil Rights Division of the U.S. Department of Justice, where she worked on the Housing & Civil Enforcement Division. Notably, Clarke was trial counsel for the government in prosecuting the towns of Colorado City, Arizona, and Hildale, Utah, for discriminating in housing against individuals who were not members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints. See Fernanda Santos, Town on Trial in Complaints of Bias Against Sect Outsiders, N.Y. Times, Jan. 21, 2016. Lawyers for the town accused the government of discriminating against an unpopular religion. See id. The trial ended with a verdict for the government, which was upheld on appeal. See Howard Fischer, Court Upholds Ruling Colorado City Abused Power, Arizona Capitol Times, Aug. 26, 2019, https://azcapitoltimes.com/news/2019/08/26/court-upholds-ruling-colorado-city-abused-power/.

From 2016 to 2019, Clarke was at the Emery Celli Brinckerhoff & Abady. During this time, Clarke represented Stephanie Rosenfeld, a Brooklyn prosecutor who alleged that her colleagues illegally wiretapped her cellphone. See Rosenfeld v. Leach, 370 F. Supp. 3d 335 (E.D.N.Y. 2019).

Since 2019, Clarke has been with the New York Attorney General’s Office. Among the matters she handled there, Clarke led the Attorney General’s successful suit against Rennselear County’s use of limited early voting polling locations, in which a judge found that the locations chosen would not lead to equitable access to the polls. See People v. Schofield, 2021 N.Y. Misc. LEXIS 5247 (N.Y.S. June 7, 2021).

Overall Assessment

Given her youth and focus on civil rights litigation, Clarke is likely to draw opposition from Republican Senators. However, there is little that would draw Democratic senators to oppose her, which gives Clarke a strong chance at both confirmation and, potentially, elevation.

Dale Ho – Nominee to the U.S. District Court for the Southern District of New York

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.

Iris Lan – Nominee to the U.S. District Court for the Southern District of New York

Iris Lan, nominated for a seat on the U.S. District Court for the Southern District of New York, brings a strong academic background and extensive governmental experience to the position.

Background

The daughter of two professors, Iris Lan grew up in Manhattan, graduating from Stuyvesant High School in 1995.[1]  Lan received her undergraduate degree from Harvard University and then entered a joint J.D.-PhD program at Harvard Law School, graduating in 2003.[2]

After graduating, Lan clerked for Judge William Bryson on the U.S. Court of Appeals for the Federal Circuit.  Lan then joined the U.S. Attorney’s Office for the Southern District of New York.  Lan also worked at the Department of Justice, becoming an Attorney Advisor in the Office of Legal Counsel.  During the Obama Administration, Lan served as Associate Deputy Attorney General and as Counsel to the Assistant Attorney General in the National Security Division.[3]  Lan is currently on detail from the U.S. Attorney’s Office for the Southern District of New York, serving with the Office of the Deputy Attorney General.

History of the Seat

Lan 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.  Lan was originally nominated for the seat on December 2, 2019 and renominated on May 4, 2020.

Legal Career

During her time with the Department of Justice and the U.S. Attorney’s Office, Lan has worked on a number of prominent criminal cases.  For example, early in her career, Lan worked on child pornography prosecutions under Operation Predator, an Immigration and Customs Enforcement (ICE) program to target pornographers and child traffickers.[4]  Lan also prosecuted Manuel Felipe Salazar-Espinosa, a drug kingpin charged with smuggling $100 million in cocaine.[5]

Among other matters, Lan prosecuted spy Ben Ami-Kadish for leaking military secrets to Israel,[6] and prosecuted terrorists for bombing U.S. embassies in East Africa.[7]

Writings

Lan hasn’t been particularly prolific as a legal writer, but did write a number of commentary pieces as a law student in the field of health law.  For example, Lan authored a number of pieces discussing developments in the field of health law.[8]  These articles were generally descriptive, although with some commentary.  For example, in one piece, Lan tentatively supports a Mississippi Supreme Court decision allowing liability for potentially exposing a patient to HIV, even where transmission is not proven.[9]

Overall Assessment

Given her credentials and extensive experience in litigation, Lan is qualified for a seat on the federal bench.  That being said, she is up against a ticking clock to the Presidential election.  Even if she maintains the support of her home-state senators, Republicans may choose to prioritize more conservative picks.


[1] Abby Y. Fung, Renaissance Woman Keeps On Runnin’, Harvard Crimson, June 10, 1999, https://www.thecrimson.com/article/1999/6/10/renaissance-woman-keeps-on-runnin-piris/.

[2] See id.

[4] See, e.g., Press Release, U.S. Department of Homeland Security Office of Immigration and Customs Enforcement, Ex-CEO Pleads Guilty to Possession of Child Pornography, Obstruction of Justice, Aug. 4, 2006.

[5] Larry Neumeister, Lawyer Tells New York Jury Her Client Dealt Drugs But Not to US, A.P. State & Local Wire, June 11, 2007.

[6] Bruce Golding, Wrist Slap for Old Spy, N.Y. Post, May 30, 2009.

[7] See In re Terrorist Bombings of U.S. Embassies in E. Afr. v. Odeh, 552 F.3d 93 (Dec. 10, 2007).

[8] See, e.g., Iris Lan, COURT DECISION: Recent Developments in Health Law: American Journal of Law & Medicine and Harvard Law & Health Care Society: Pharmaceuticals: Conspiracy to Increase Ritalin Profits Alleged, 29 J.L. Med. & Ethics 100 (Spring 2001); Iris Lan, REGULAR FEATURE: Recent Developments in Health Law: American Journal of Law & Medicine and Harvard Law & Health Care Society: ADA: U.S. Supreme Court to Address Whether Carpal Tunnel Constitutes a Disability, 29 J.L. Med. & Ethics 407 (Fall/Winter 2001); Iris Lan, Recent Developments in Health Law: American Journal of Law & Medicine and Harvard Law & Health Care Society: AIDS: Mississippi Supreme Court Adopts New Standard for Fear of Exposure to AIDS, 28 J.L. Med. & Ethics 94 (Spring 2000).

[9] See Iris Lan, Recent Developments in Health Law: American Journal of Law & Medicine and Harvard Law & Health Care Society: AIDS: Mississippi Supreme Court Adopts New Standard for Fear of Exposure to AIDS, 28 J.L. Med. & Ethics 94, 95 (Spring 2000).

Jennifer Rearden – Nominee to the U.S. District Court for the Southern District of New York

The relationship between New York’s Democratic senators and the Trump Administration has often been tense and combative.  This has occasionally manifested itself in conflicts over New York’s federal bench.  However, the nomination of Jennifer Rearden should be a point of agreement from all sides.

Background

50-year-old Jennifer Hutchison Rearden received her B.A. from Yale University in 1992 and a J.D. in 1996 from New York University School of Law.  After law school, Hutchison joined Davis Polk & Wardwell, before moving to the Atlanta office of King & Spalding.  Since 2003, Rearden has been a Partner with Gibson, Dunn & Crutcher in New York City.

History of the Seat

Reardon has been nominated to the vacancy on the U.S. District Court for the Southern District of New York vacated on October 25, 2018 by Judge Richard Sullivan’s elevation to the U.S. Court of Appeals for the Second Circuit.

Political Activity

Rearden has been an active political donor, having made over thirty political contributions over the last thirteen years.[1]  While Rearden has given to politicians of both parties (her Republican donees include Rudolph Giuliani and Chris Christie), most of her donations have been to Democrats.[2]  She has contributed particularly to female Democratic senators and senate candidates, giving them almost $12000 in the 2016 cycle.[3]

Legal Career

Rearden has spent her entire career in private practice, working at various big law firms as a commercial litigator.  Specifically, Rearden has handled a number of complex commercial cases, including matters related to tax, contract, and compliance matters.[4]

Among her more prominent cases, Rearden represented Philip Morris Inc. and other tobacco companies in a suit against the City of New York challenging the City’s regulation of tobacco prices.[5]  She also represented Home Depot in an Arizona suit involving tax deductions.[6]

Notably, Rearden argued in New York State Court a suit seeking Worker’s Compensation benefits for an employee’s domestic partner (through a civil union).[7]  The Appellate Division of the New York Supreme Court found, in a divided opinion, that statutory provisions supporting worker’s compensation benefits for surviving spouses did not cover partners in a civil union.[8]

Writings

Rearden has been a fairly prolific author, frequently writing articles on various legal issues, including issues of civil practice, procedure, and substantive law.

For example, Rearden has written on the Columbia Pictures v. Bunnell ruling in the Central District of California, which held that random access memory (RAM) could be discoverable material that needed to be preserved in preparation for litigation.[9]  She has similarly expounded on a similar decision by Judge Shira Scheindlin on production of metadata during discovery.[10] 

Overall Assessment

With both the Trump Administration and New York Democrats behind her candidacy, Rearden is likely to sail through the confirmation process.  Barring objections from Republican senators, Rearden is likely to be confirmed comfortably.


[2] See id.

[3] Id.

[5] See Nat’l Ass’n of Tobacco Outlets v. City of New York, 27 F. Supp. 3d 415 (S.D.N.Y. 2014).

[6] Home Depot USA, Inc. v. Ariz. Dep’t of Rev., 230 Ariz. 498 (Ariz. Ct. App. Div. 1 2012).

[7] Matter of Langan v. State Farm Fire & Cas., 48 A.D.3d 76 (N.Y. Sup. App. Div. 2007).

[8] See id. at 78-79.

[9] Jennifer H. Rearden and Farrah Pepper, Oh No, Ephemeral Data, N.Y. Law Journal, Mar. 22, 2010, https://www.gibsondunn.com/wp-content/uploads/documents/publications/Rearden-Pepper-OhNoEphemeralData.pdf.  

[10] Jennifer Rearden, Farrah Pepper, and Adam Jantzi, Scheindlin’s ‘Day Laborer’ Decision: Much Ado About Metadata, Law Technology News, Feb. 22, 2011, https://www.gibsondunn.com/wp-content/uploads/documents/publications/Rearden-%20Pepper-%20Scheindlin%27s-Day-Laborer%27-Decision-LTN-2-22-11.pdf.

John Cronan – Nominee to the U.S. District Court for the Southern District of New York

John Cronan, who currently serves as Principal Deputy Assistant Attorney General for the Department of Justice, was nominated to the U.S. District Court for the Southern District of New York, with the support of New York’s Democratic Senators.  

Background

John Peter Cronan was born in Teaneck, New Jersey in 1976.  Cronan graduated magna cum laude from Georgetown University and then received his J.D. from Yale Law School.[1] 

After graduating, Cronan clerked for Judge Barrington Daniels Parker and for Judge Robert Katzmann on the U.S. Court of Appeals for the Second Circuit.[2]  Cronan then became a federal prosecutor with the U.S. Attorney’s Office for the Southern District of New York.  In 2017, Cronan became the Chief of the Terrorism and International Narcotics Unit.

In 2017, Cronan moved to the Department of Justice to be Acting Assistant Attorney General and Principal Deputy Assistant Attorney General.  He is still with the Department.

History of the Seat

Cronan 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 Richard Pauley, who moved to senior status on March 1, 2018.  In mid-2018, Cronan expressed his interest in the judgeship to the White House Counsel’s Office.[3]  Shortly after, Cronan interviewed with the White House Counsel’s Office for the judgeship.

In May 2019, Cronan’s nomination process restarted with a second interview.  Cronan was officially nominated on December 2, 2019.

Legal Career

After his clerkships, Cronan spent the rest of his career as a federal prosecutor and as the Department of Justice.

Cronan worked as an Assistant United States Attorney in the Southern District of New York between 2007 and 2017.  In that role, Cronan handled a wide variety of cases in both the Civil and Criminal Divisions of the Office, focusing in particular on terrorism cases.[4]  For example, Cronan prosecuted Sulaiman Abu Ghayth, a close associate of Osama Bin Laden, for conspiring to murder Americans and providing material support to terrorists.[5]  Cronan also prosecuted a number of other individuals for terrorism-related charges, including Abu Hamza al-Masri, Faisal Shahzad, and Mohammad Younis.

In his current role at the Department of Justice, Cronan led the pursuance of charges for precious metal market manipulation against HSBC, UBS, and Deutsche Bank.[6]  Cronan also testified before Congress regarding the Justice Department’s civil asset forfeiture policies, where he faced criticism for the delay in returning seized assets to taxpayers.[7]

Writings

While Cronan hasn’t written much for most of his career, he was particularly prodigious in his youth, writing a number of legal articles over the first few years of his career.  We’ve outlined some of the more significant below.

First Amendment

Cronan has been particularly prolific in writing about the First Amendment concept of “incitement,” which allows the government to punish speech that incites someone to “imminent lawless action.”  In a student note authored in 2000, Cronan discussed the incitement and related “threat” standard when applied to the Nuremberg Files, a “hit-list” of abortion doctors published on the internet.[8]  In the article, Cronan argues that the list did not constitute a “true threat” as it lacked both the language of the threat and the intent to carry out a threat.[9]  In a later article, Cronan suggests that the list could have risen to the level of incitement to lawless activity as several doctors on the list were later victims of violence and three were killed.[10]

Diversity and Multiculturalism

In 2001, Cronan authored an article discussing affirmative action programs in higher education.[11]  Specifically, Cronan praised the overall goal of increasing diversity in higher education, but criticized both race-based affirmative action and race-blind affirmative action, instead proposing a hybrid scheme that considers both racial and non-racial factors.[12]

Overall Assessment

Despite his Federalist Society background and Trump Administration bona fides, Cronan is likely to attract more opposition from the right than from the left.  If so, such opposition would largely be motivated by his writings which reject conservative positions on issues of affirmative action, abortion rights, and First Amendment law.  As such, while Cronan is strongly favored for confirmation, it would not be surprising to see some “no” votes from Republican senators.


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

[2] See id. at 2.

[3] Id. at 76.

[4] See id. at 38.

[5] United States v. Abu Ghayth, S14 98 Cr. 1023 (LAK) (S.D.N.Y.).

[6] See Renae Merle, U.S. Regulator, DOJ Settle ‘Spoofing’ Charges Against European Banks; The Case is the Largest Crackdown, So Far, On What Wall Street Has Increasingly Complained Is Abuse Of Sophisticated Computer Algorithms to Illegally Place and Quickly Cancel Bids on Commodity Contracts, Wash. Post Blogs, Jan. 29, 2018. 

[7] Christopher Ingraham, The Justice Department Won’t Return Seized Cash to Hundreds of Taxpayers. Now House Republicans Are Stepping In.; “What Was Done Was Not Fair, Just or Right in Most Cases,” Lawmakers Say, Wash. Post Blogs, July 19, 2018.

[8] John P. Cronan, Free Speech on the Internet: Does the First Amendment Protect the “Nuremberg Files”?, 2 Yale Symp. L. & Tech. 5  (Spring 2000).

[9] Id. at 17.

[10] John P. Cronan, The Next Challenge for the First Amendment: The Framework for an Internet Incitement Standard, 51 Cath. U. L. Rev. 425, 446 (2002).

[11] The Diversity Justification in Higher Education: Evaluating Disadvantaged Status in School Admissions, 34 Suffolk U.L. Rev. 305 (2001).

[12] Such a scheme is fairly consistent with modern affirmative action schemes, which consider race but do not use it as a sole factor.

Philip Halpern – Nominee to the U.S. District Court for the Southern District of New York

Jeanine Pirro is not only a former judge and television personality but is also close to the Trump Administration.  Her influence can be seen in the nomination of Philip Halpern to the Southern District of New York.

Background

Philip Morgan Halpern was born in Derby, CT on April 17, 1956.  Halpern attended Fordham University and Pace University School of Law.[1] 

After graduating, Halpern clerked for Judge Irving Ben Cooper on the U.S. District Court for the Southern District of New York and then joined the New York office of Kimmelman, Sexter & Sobel P.A. as an Associate.[2]  In 1984, he shifted to Collier, Halpern & Newberg LLP in White Plains, where he became a Partner in 1985 and Managing Partner in 1995.[3]  He is still with that office.

History of the Seat

Halpern 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 Kevin Castel, who moved to senior status on August 5, 2017.  After being recommended to the White House by Pirro, Halpern interviewed with the White House Counsel’s Office in mid 2017.[4]  He was selected as a nominee in March 2018 and was nominated on October 10, 2018.[5]

Political Activity

While he is a registered Republican, Halpern has donated to both Democrats and Republicans.[6]  Among Republicans, Halpern gave $2000 to then-Sen. Al D’Amato in 1995 and $2500 to Republican Senate candidate Linda McMahon in 2012.[7]  Among Democrats, Halpern gave $300 to Sen. Robert Menendez (D-NJ) in 2011 and $650 to Sen. Cory Booker (D-NJ) in 2013.[8]

Legal Career

Halpern has spent virtually his entire legal career at the firm of Collier Halpern & Newberg.  One of his former partners at the firm was Albert Pirro, who was married at the time to Jeanine.[9]  Pirro left the firm in 2000 after being convicted of tax fraud.[10]  Halpern actually later represented his former partner before the State Bar, and successfully persuaded them to impose a lower remedy than revocation of Pirro’s law license.[11]

In other matters, Halpern represented an association of taverns and restaurants in challenging Westchester County’s smoking ban.[12]  He also represented Home Depot in trying to sue city officials in Rye, NY, for causing delays in building stores, a suit ultimately rejected by the New York Court of Appeals (despite its name the highest court in NY).[13]  In 2004, he represented a developer who had acquired an old Orthodox Jewish cemetery and faced legal obstacles to developing on the land.[14]

Writings

While not as prolific as other judicial nominees, Halpern has written occasionally on the law, generally in a descriptive manner.  For example, Halpern praises the use of motions for summary judgment as a strategic tool for litigators to present their best case before the judge.[15]  In another, Halpern describes the availability of jury trials in cases that mix principles of law with equitable relief.[16]

Overall Assessment

With a fairly bipartisan political history and nearly forty years of legal experience, Halpern would seem unlikely to draw significant controversy in the confirmation process.  However, Hapern’s confirmation process does not seem to have gone through Sens. Chuck Schumer and Kirsten Gillibrand, who represent New York, and, given the controversy over New York’s appellate nominees, they are unlikely to be receptive to the Administration’s nominees.  It is nonetheless possible that Halpern will be confirmed as part of a nominations deal.


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

[2] See id. at 2.

[3] Id.

[4] Id. at 45-46.

[5] See id.

[7] See id.

[8] Id.

[9] See Winnie Hu, After Tax Fraud Conviction, Pirro Leaves Law Practice, N.Y. Times, July 1, 2000.

[10] See id.

[11] Pirro’s Law License is Suspended for 3 Years, N.Y. Times, May 17, 2003.

[12] Elsa Brenner, Tough Smoking Law Survives Challenge, N.Y. Times, June 23, 1996.

[13] Thomas Crampton, A Body Blow to Retail Goliaths, N.Y. Times, May 23, 2004.

[14] Daniel J. Wakin, Lost in Yonkers: A Cemetery and 135 of its Children, N.Y. Times, July 7, 2004.

[15] See Philip Halpern, Unlocking a Valuable Tool: Summary Judgment Hearings on Issues of Fact, 33 Westchester B. J. 98 (Fall/Winter 2006).

[16] Philip M. Halpern, Mixing Law and Equity Causes of Action Does Not Preclude a Jury Trial, 35 Pace L. Rev. 807 (Spring 2015).

Lewis Liman – Nominee to the U.S. District Court for the Southern District of New York.

The judicial nomination process often involves dealmaking, where nominations are logrolled together to satisfy different stakeholders.  A perfect example of this is with regard to the 8-nominee New York package put together by the White House in consultation with Democratic Senators Chuck Schumer and Kirsten Gillibrand.  As part of the package, the White House has nominated a candidate they wouldn’t otherwise consider: Lewis Liman.

Background

Lewis Jeffrey Liman was born in New York on December 3, 1960, the son of Arthur and Ellen Liman.  Liman’s father, Arthur L. Liman, was a famous lawyer in his own right, having led the Senate Iran-Contra Investigation.[1]  Liman grew up in New York City (on the Upper West Side) and then attended Harvard College and Yale Law School (with a stint at the London School of Economics in between).[2]

After graduating, Liman spent a year at the NAACP Legal Defense & Educational Fund.  He then clerked for Judge Pierre Leval on the U.S. Court of Appeals for the Second Circuit and then for Justice John Paul Stevens on the U.S. Supreme Court.[3]  At the Supreme Court, Liman clerked alongside an array of future legal luminaries including Judge Stephen Higginson, Judge Adalberto Jordan, Judge Randolph Moss, Judge Paul Engelmayer, Peter Keisler, Miguel Estrada, Richard Cordray, and Ronald Klain.

After his clerkships, Liman joined the New York office of Cravath Swaine & Moore LLP as an associate.  In 1994, Liman shifted to the U.S. Attorney’s Office for the Southern District of New York, working under Mary Jo White.  In 1999, Liman moved to Wilmer, Cutler & Pickering LLP as a Partner.  In 2003, Liman joined the New York office of Cleary Gottleib Steen & Hamilton LLP as a Partner.  He continues to serve there to this day.

History of the Seat

Liman 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 Paul Crotty.  While Crotty moved to senior status on August 1, 2015, President Obama never made a nomination to fill the vacancy.  However, at the time, Liman was recommended for the vacancy to Schumer by his Screening Committee.[4]

In April 2017, Liman was interviewed by the Trump Administration for nomination to the Southern District of New York.  Liman’s name was then broached to Schumer and Gillibrand as a part of a package of nominees.[5]  Once approved, Liman began the nomination process in November 2017 and was nominated on May 15, 2018.

Political Activity

Liman has been an active political donor, having made nearly forty political contributions over the last twenty five years, all to Democrats or Democratic-aligned organizations.[6] Among his donations, Liman has given to Schumer, Gillibrand, Hillary Clinton, President Obama, and John Kerry.[7]

Legal Career

After working briefly for the NAACP Legal Defense & Educational Fund and clerking, Liman has spent the bulk of his career either as a federal prosecutor or in private practice.

Federal Prosecutor

Liman worked as an Assistant United States Attorney in the Southern District of New York between 1994 and 1999.  In that role, Liman handled a wide variety of cases including white collar crime, organized crime, drugs, and financial crime.[8]

Among his more prominent cases, Liman prosecuted Autumn Jackson for extorting money out of Bill Cosby through blackmail, claiming that Cosby was her father.[9]  Alongside fellow AUSA Paul Engelmayer,[10] Liman led the trial examination and secured a guilty verdict.[11]  Notably, Liman’s father passed away during the trial, forcing a recess.[12]

Among other cases he handled, Liman prosecuted a junior analyst at J.P. Morgan for insider trading,[13] secured convictions against four members of the Cali drug cartel for smuggling approximately three thousand pounds of cocaine,[14] and prosecuted a tax accountant for preparing false tax returns on behalf of dozens of clients to help them evade taxes.[15]

Private Practice

Liman has spent most of his career in private practice, working at Cravath Swaine & Moore LLP from 1990 to 1994, at Wilmer, Cutler & Pickering LLP from 1999 to 2003, and at Cleary Gottleib Steen & Hamilton LLP since 2003.  In each of these positions, Liman’s practice focused on litigation.  In his first position at Cravath, for example, Liman focused on Antitrust litigation, including representing Time Warner Corporation.[16]

During his time at Wilmer, Liman focused on representing corporations in securities actions and white collar cases.  However, he also represented a coalition of religious groups arguing that a construction company responsible for a fire that almost destroyed the Central Synagogue should not be allowed to reduce their damages by the amount of charitable donations the organization took in.[17]  Liman also represented, upon court appointment, a New York prisoner seeking release after his conviction for burglary, successfully securing the prisoner’s release.[18]

While at Wilmer, Liman represented Tyco International executive Dennis Kozlowski.  During the investigation, emails from Liman were uncovered, which disclosed his knowledge of personal use of corporate funds by executives.[19]  The emails raised concerns as to whether Liman should have disclosed the violations to federal regulators.[20]

Since 2003, Liman has worked as a Partner at Cleary Gottleib Steen & Hamilton LLP, focusing on securities litigation and white collar crime cases.  For example, Liman represented Bank of America in defending against a securities fraud action brought by the Securities and Exchange Commission.[21]

While at Cleary, Liman argued his first and only case at the U.S. Supreme Court, representing a fund manager facing securities fraud allegations brought by the SEC.[22]  Liman was able to convince the Supreme Court that the actions brought against his client were untimely due to the five year gap between the SEC discovering the allegations and bringing suit.[23]

Writings

Liman has been a fairly prolific author, beginning his career by co-authoring a book with his mother while he was still a teenager.[24]  Liman has been particularly prolific on sentencing issues, exploring the weight and efficacy of the Sentencing Guidelines.[25]

In 1991, Liman authored a Letter to the Editor for the New York Times, discussing footnotes in Supreme Court decisions and its impact on “judicial restraint.”[26]  In the letter, written in response to a recent article,[27]  Liman argues that there is no correlation between the extensive use of footnotes in Supreme Court opinions and the lack of “judicial restraint,” noting:

“Judicial restraint is not equivalent to conservative judicial result, but is characterized by a reluctance to adopt rules broader than necessary to resolve a dispute and a willingness to listen to other voices in making a decision.”[28]

Overall Assessment

Let’s get the obvious out of the way: Liman is a Democrat and a more liberal candidate than most Trump will put forward.  However, it is far from uncommon for Presidents to nominate judges of the opposing party to the bench.  As such, with both the Trump Administration and New York Democrats behind his candidacy, Liman is likely to sail through the confirmation process.

Interestingly, if Liman faces opposition, it will likely come from Republican senators who consider his record to be too “liberal.”  Nevertheless, his strong academic credentials and extensive legal experience should be sufficient to ensure a bipartisan confirmation.


[1] Lois Smith Brady, Weddings: Vows; Lisa Cohen and Lewis Liman, N.Y. Times, Jan. 24, 1999.

[2] Sen. Comm. on the Judiciary, 115th Cong., Lewis Liman: Questionnaire for Judicial Nominees 1.

[3] See id. at 2.

[4] Id. at 49.

[5] 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.  

[6] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=lewis+liman&order=desc&sort=D (last visited July 31, 2018).

[7] See id.

[8] See Liman, supra n. 2 at 26.

[9] Greg B. Smith, Cos to Take the Stand in Extort Case, N.Y. Daily News, June 27, 1997.

[10] Engelmayer himself now serves on the SDNY bench, having been appointed by President Obama in 2011.

[11] Greg B. Smith, Autumn to Take a Big Fall, She’s Convicted of Cosby Extort, N.Y. Daily News, July 26, 1997.

[12] See Agent Ties Woman to Cosby Scheme, USA Today, July 18, 1997.

[13] Benjamin Weiser, An Insider Trading Charge at J.P. Morgan, N.Y. Times, Sept. 13, 1997.

[14] United States v. Garcia, 94 Cr. 78 (JES) (S.D.N.Y.).

[15] United States v. Abrams, 95 Cr. 285 (JES) (S.D.N.Y.), aff’d, 137 F.3d 704 (2d Cir. 1998).

[16] See Liman, supra n. 2 at 27.

[17] See Diana B. Henriques and Leslie Eaton, Once and Future Issue: Subtracting Donations from Damage Awards, N.Y. Times, Nov. 18, 2001.

[18] Stewart v. Strack, 99 Cv. 6400 (ERK) (E.D.N.Y.).

[19] Laurie P. Cohen and Mark Maremont, E-mails

[20] See id.

[21] In re Bank of America Secs. Litig., 09 MDL 2058 (PKC) (S.D.N.Y.).

[22] SEC v. Gabelli, 653 F.3d 49 (2d Cir. 2011), rev’d, 568 U.S. 442 (2013).

[23] See id.

[24] Ellen Liman and Lewis Liman, The Collecting Book (1980).

[25] See, e.g., Lewis J. Liman, Sentencing; ‘Extreme Vulnerability’ Revisited, New York Law Jounal, Mar. 7, 2003; Lewis J. Liman, Should Interdistrict Disparity be a Permissible Basis for Departure, 12 Fed. Sent’g Rep. 154 (1999); Lewis J. Liman, The Constitutional Infirmities of the United States Sentencing Commission, Yale L.J. 1363, 1987.

[26] Lewis Liman, High Court Wields a Powerful Footnote, N.Y. Times, Jan. 18, 1991.

[27] Id.

[28] Id.

Judge Mary Kay Vyskocil – Nominee for the U.S. District Court for the Southern District of New York

Compared to federal magistrate judges, it is more uncommon for federal bankruptcy judges to elevated to an Article III appointment.  The Trump Administration, however, has already nominated two bankruptcy judges for elevation, including Judge Mary Kay Vyskocil, nominated for one of the prestigious courts in the country.

Background

A native New Yorker, Vyskocil was born in the city in 1958.  She received her B.A. summa cum laude from Dominican College of Blauvelt and then her J.D. from St. John’s University of Law.[1]

After graduation, Vyskocil joined Simpson Thacher & Bartlett LLP as an Associate.[2]  In 1990, she became a Partner at the firm.[3]  She stayed with the firm until 2016 when she was selected as a U.S. Bankruptcy Judge.[4]  Vyskocil currently serves in that capacity.

In 2014, when Judge Robert Smith on the New York Court of Appeals was set to retire, Vyskocil applied for the vacancy and was selected as one of seven finalists.[5]  Gov. Andrew Cuomo ultimately did not select Vyskocil, appointing Judge Eugene Fahey instead.  Vyskocil applied and was selected as a finalist again in 2017 when Judge Sheila Abdus-Salaam passed away, but Judge Paul Feinman was selected for the vacancy instead.[6]

History of the Seat

Vyskocil has been nominated for a seat on the U.S. District Court for the Southern District of New York.  This seat opened on March 1, 2017, when Judge Loretta Preska moved to senior status.

In April 2017, Vyskocil was contacted by the White House to gauge her interest in a federal judgeship.[7]  After interviewing with the White House, Vyskocil’s name was broached to New York Senators Chuck Schumer and Kirsten Gillibrand.[8]  Vyskocil was officially nominated on May 15, 2018.

Legal Career

Before she ascended to the federal bench, Vyskocil spent 33 years at Simpson Thacher & Bartlett LLP in New York City.  At the firm, Vyskocil primarily handled a civil litigation docket, focusing on commercial tort and contract cases.[9]  Over the course of her time at the firm, Vyskocil has tried fifteen cases and has participated in briefing two cases at the U.S. Supreme Court.[10]

Among her trials, Vyskocil represented Swiss Re Group and affiliated insurance companies in a declaratory judgment action related to insurance payouts for the destruction of the World Trade Center on 9/11.[11]  In the case, which required a three month long trial, Vyskocil secured a ruling that the insurance policies created liability for $3.5 Billion as the attacks constituted one “occurence” (the lessees requested $7 Billion in payouts).[12]

Jurisprudence

Vyskocil has served as a U.S. Bankruptcy judge in New York since her appointment in 2016.  As a Bankruptcy Judge, Vyskocil supervises bankruptcy matters, and has handled over 1000 cases since her appointment.[13]  Among the cases she has handled, Vyskocil presided over the bankruptcies of an organization providing educational opportunities to students in China,[14] construction companies involved in the World Trade Center rebuilding,[15] and a retailer of organic juice cleanses.[16]

Impressively, none of the decisions Vyskocil has made in her two years on the bench has been reversed by a higher court.[17]

Political Activity

Vyskocil, a former member of the Federalist Society for Law and Public Policy Studies, has donated exclusively to Republican candidates, including former Sen. Al D’Amato, former Pres. George W. Bush, former Rep. Rick Lazio, and Sen. John McCain.[18]

Writings

Throughout her career, Vyskocil has been extremely prolific as both an author and a speaker.  In conjunction with her former law partner Barry Ostrager, Vyskocil has authored a number of handbooks on insurance and commercial law including Occurrence Policy Coverage for Tort Claims, Crisis Management – Commercial Litigation in New York State Courts, and Modern Reinsurance Law & Practice.[19]

Vyskocil has also authored a number of articles discussing developments in the law.  In one article, Vyskocil, along with the other members of the Committee on Federal Courts for the New York City Bar, recommended that rules of privilege should not be codified for use in federal court, arguing that the common law approach to privilege permits more flexibility and adaptability.[20]

Overall Assessment

Looking at her overall record, it  is hard to dispute Vyskocil’s qualifications for the federal bench.  With 33 years of federal practice, a solid and uncontroversial tenure on the bench, and a strong academic writing background, Vyskocil will likely be seen as a consensus nominee.  The fact that she has Schumer and Gillibrand in her corner won’t hurt either.

Given these factors, Vyskocil should sail to confirmation, much like the others in the New York package of nominees.


[1] Sen. Comm. on the Judiciary, 115th Cong., Mary Kay Vyskocil: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] Id.

[4] Id.

[5] Denise M. Champagne, COA Nominees Forwarded to Governor, The Daily Record of Rochester, Dec. 2, 2014.

[6] Christine Stuart, Seven Make Short List for Open Seat on NY’s High Court, Courthouse News Service, June 2, 2017, https://www.courthousenews.com/seven-make-short-list-open-seat-nys-highest-court/.  

[7] Vyskocil, supra n. 1 at 35.

[8] 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.  

[9] See Vyskocil, supra n. 1 at 71.

[10] See id.

[11] See S.R. Int’l Bus. Ins. Co. v. World Trade Center Props. LLC, 467 F.3d 107 (2d Cir. 2006).

[12] See id.

[13] See Vyskocil, supra n. 1 at 46.

[14] See In re ChinaCast Educ. Corp., No. 16-13121 (Bankr. S.D.N.Y. filed Nov. 9, 2016).

[15] See In re Collavino Constr. Co., Case Nos. 14-12908 & 15-10344 (Banr. S.D.N.Y. filed Oct. 17, 2014) (Jointly Administered).

[16] See In re Organic Ave. LLC, Case No. 15-12787 (Bankr. S.D.N.Y. filed Oct. 15, 2015).

[17] See Vyskocil, supra n. 1 at 67-68.

[19] See Vyskocil, supra n. 1 at 11-13.

[20] The Committee on Federal Courts, Revisiting the Codification of Privileges Under the Federal Rules of Evidence, 55 The Record 148, Jan/Feb 2000.