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.
[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
[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).
[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.
The Vetting Room 