Judicial Nominations

President Biden's Third Slate of Judicial Nominees Continues Emphasis on Criminal Defense Experience

All three of today's appellate nominees have worked as public defenders.

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Today the White House announced its third slate of federal judicial nominees, including three for federal appellate courts. Of particular note, all three of today's nominees to appellate vacancies have public defender experience. This is significant because, while there is a surfeit of federal judges who are former prosecutors, there are relatively few federal judges who have been public defenders.

Today's three appellate nominees are:

  • For the U.S. Court of Appeals for the First Circuit: Chief Judge Gustavo A. Gelpí of the U.S. District court for the District of Puerto Rico. Among other things, Judge Gelpí served as an Assistant Federal Public Defender from 1993 to 1996.
  • For the U.S. Court of Appeals for the Second Circuit: Eunice C. Lee, an Assistant Federal Defender with the Federal Defenders of New York.
  • For the U.S. Court of Appeals for the Tenth Circuit: Veronica S. Rossman, Senior Counsel to the Office of the Federal Public Defender for the Districts of Colorado and Wyoming.

The White House also announced nominations for district courts in New Jersey, Massachusetts, and Washington.

This brings the total number of President Biden's judicial nominations up to 20, none of which have yet been confirmed. As of today, there are a total of 81 current judicial vacancies on the federal bench, and 26 future vacancies.

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  1. And rumor has it he’s going to appoint a progressive prosecutor (her own self-description) to be US Attorney for Massachusetts.

    1. Who may not be confirmed — I like to thing that there is at least one Democratic Senator who is still (small ‘l”) liberal enough to be concerned about TV news footage of her threatening to fabricate a fictitious charge against said TV News Reporter.

      I also find it interesting how the Boston Police have now assigned her an officer to drive her — she didn’t have one back when the Christmas Shopping road rage incident occurred — and now she does.

      “Decline to prosecute” is a campus activist from UMass Amherst who isn’t ready for the national stage. For starters, USAs have to play second fiddle to Justice in DC and I don’t see her doing that. Likewise, while Howie Carr’s show is broadcast live in five states, I can just imagine her going onto one of the Sunday shows, loose cannon that she is.

      She’ll crash and burn….

  2. Probably the most important trait the bench is lacking.

  3. Question: What crimes (and what defendants) does a Federal Public Defender defend?

    Biden’s not appointing someone like Harvey Silverglate (whom I think would make a great Federal judge), or a *state* public defender (who would have seen a great diversity of offenses) — Biden is appointing people whose experience consists of defending indigent FEDERAL defendants.

    So what FEDERAL crimes could an indigent person commit (that the Feds would bother prosecuting)? Doesn’t being indigent preclude most Federal crimes other than drug & gun offenses?

    And the other reason why defense attorneys are rarely appointed is that some of their defendants have been both actually guilty and quite unsavory. Hillary Clinton and the child rapist comes to mind…

    1. Creeping federalization has made it possible for all kinds of crimes to be prosecuted federally.

      Not just criminal immigration offenses and drug charges, but any sort of theft, murder, etc. that has some arguable connection to interstate commerce or other federal connection can be.

      There was a federal murder case some while back where the basis for federal jurisdiction for an otherwise purely local murder was that blood splattering or something during the course of the murder had damaged the paint of a house with a federally guaranteed mortgage, causing perhaps $50 in damage.

      A death penalty case for an act of completely unintentional vandalism causing $50 damage? That was, after all, the only federally relevant conduct and the only conduct that Congress’ regulation of interstate commerce addressed.

      1. There was a federal murder case some while back where the basis for federal jurisdiction for an otherwise purely local murder was that blood splattering or something during the course of the murder had damaged the paint of a house with a federally guaranteed mortgage, causing perhaps $50 in damage.

        Do you have any more information about that? Sounds fascinating.

    2. “So what federal crimes could an indigent person commit (that the Feds would bother prosecuting)? Doesn’t being indigent preclude most Federal crimes other than drug & gun offenses?”

      Well, there are a lot of those. Also the Hobbs Act scoops in a bunch of stuff. Also child pornography and other sex offenses. And terrorism/national security. Also just because something is “white collar” doesn’t mean the defendant isn’t ultimately indigent benefits fraud for example.

      “And the other reason why defense attorneys are rarely appointed is that some of their defendants have been both actually guilty and quite unsavory.”

      This is an incredibly bad reason not to appoint someone, said by people with zero respect for our justice system. If you never appoint defense attorneys to judgeships simply because their clients are guilty, you’re basically conceding that judges are just extensions of the prosecution, which is not how its supposed to be set up.

    3. “other than drug & gun offenses”

      You answered your own question.

      And don’t underestimate the creative abilities of AUSA’s. I once attended a motion conference before a federal judge in a civil case. As many do, he had on a bunch of motions for the same afternoon, so I got the great pleasure of listening to other people’s cases and arguments.

      He had on a criminal case, in which a defendant, a kid of about 18 in my estimation, was pleading guilty and allocuting. The gist of it was he was in a gang that sold drugs. But the US Atty charged him with RICO violations.

      At the end, the judge asks the AUSA, “Is there anything else I need to ask him?” “Yeah judge, as him if he was part of a RICO enterprise.” So the judge asks him.

      The kid looks at the judge like a deer who has been struck by a car. No clue. His lawyer jumps up, whispers something to him, and then he says, “Yes judge, I was part of a RICO enterprise.”

      This is what passes for justice today. So, yeah, a federal public defender can be involved in all sorts of interesting areas of the law.

      1. I interned for a federal judge who after two decades on the bench was still mystified about how the US Attorney chose which robberies to prosecute under the Hobbs Act.

    4. “Biden is appointing people whose experience consists of defending indigent FEDERAL defendants.”

      From what I’ve read, the DOJ routinely tries to freeze the assets of wealthy federal defendants so they can’t pay for private defense attorneys and have to rely on federal public defenders.

      1. You may want to find better reading material.

    5. Biden is appointing people whose experience consists of defending indigent FEDERAL defendants.

      That characterization seems roughly in line with your typical level of factual accuracy.

  4. With apologies for thread drift, I have heard of cases where the feds hire some fairly top flight private defense attorneys to defend indigent defendants. Other times indigent defendants apparently get a staff attorney from the Federal Public Defender’s office.

    What drives that choice?

    1. If the federal courts are like state courts, there is probably an assignment system that divides up the work between FPDs and private attorneys on the appointed counsel lists. For instance it might be by case number: odds get appointed private counsel and evens get public defender at first (conflicts might end up in reassignment at a later point). Some of the “top flight” private defense counsel still might have themselves on appointed counsel lists for various reasons.

  5. Weak on crime administration appoints weak on crime judges.

    1. Bad person has bad take.

    2. Moreover: you really are a disgrace to this entire disgrace to this entire profession. If you can’t see the value of criminal defense, I’d question your ability to play fair in litigation generally. Public defenders are 10x the lawyer your think you are, and 100x the lawyer you actually are.

      1. Edit. Are disgrace to this entire profession.

      2. The world needs lawyers reviewing deeds in can’t-keep-up Ohio, too.

      3. “If you can’t see the value of criminal defense”

        Just checking: A lot of people spent a lot of time attacking the Chauvin defense. For being their and trying to defend him

        Have you been going after those people. Or is your answer “that’s different”?

  6. Is “Senior Counsel to the Office of the Federal Public Defender” a public defender, or more like a corporate counsel?

    1. I don’t know what a “Senior Counsel” is, but ordinarily people in administrative positions in public defender’s offices start off as trial deputies and work their way up. That appears to be the case with Rossman, who (according to a news story on her appointment) has been in the office for 11 years. The story said she defended a man charged with killing 3 people at a Planned Parenthood clinic; public defender’s offices ordinarily assign their best attorneys to handle high profile cases like that.

  7. Man, I bet they’re even recommended by the ABA unlike half of the Trump picks.

    1. Ah, so they’re garbage picks who are left wing losers?

      That being what the ABA wants

  8. I’m a federal public defender. We represent clients charged with all kinds of cases. Lots of guns and drugs but also immigration crimes, sex trafficking, all kinds of fraud, child porn, counterfeiting, alien smuggling, RICO, extradition, assaults on federal property, etc. We probably handle less white-collar crime than private defense attorneys, but still get the full gamut.

    And a commenter below is correct: the appointed cases are typically divided equally between the federal defender and private attorneys on the Criminal Justice Act panel. Some panel attorneys are superb; others not so much. It all varies from district to district.

    Finally, to all the haters: “[F]ederal public defenders . . . in our experience, typically provide the highest quality representation, very often superior to that provided by members of the private criminal defense bar. Nor are we alone in that opinion: A survey of 457 federal district and appellate judges, published as part of an article co-authored by Judge Posner of the Seventh Circuit, rated advocacy by public defenders in federal court significantly higher than that provided by privately retained attorneys, court-appointed attorneys, and even prosecutors. Richard A. Posner & Albert H. Yoon, What Judges Think of the Quality of Legal Representation, 63 Stan. L.Rev. 317, 322, 327 (2011); see also id. at 341–42 (reviewing research suggesting that “a majority of indigent federal criminal defendants may be serving longer sentences by virtue of not having been represented by a federal public defender”).

    — United States v. Brown, 785 F.3d 1337, 1349 (9th Cir. 2015)

    1. A decade or two ago private attorneys in western Massachusetts stopped taking appointed counsel cases in state court to protest low pay. That made me think the state was not paying well enough to get the best people, at least not consistently. I forget the numbers but neither the prosecutors nor the defenders seemed very well paid.

  9. Any Catholics there? Irish? Italian? Just asking…those groups are never nominated by Dems…never

    1. I seem to recall they nominated a Catholic candidate for President recently.

      1. Yeah, but not a “real” Catholic. He doesn’t hate immigrants, gay people, or legitimate schools.

  10. So, any comment on Biden pick Deborah Boardman not being able to define “rational basis” during her Senate hearing today?

    For that matter, any comment on someone calling herself a lawyer, who can’t define “rational basis”?

    1. Didn’t hear that, but it strikes me as similar to Trump’s nominee’s failure to know what a motion in limine is. A federal judge needs to know both.

      Was it failure to know the concept, or failure to give a good explanation of something she knew generally? The latter I can forgive, seeing as how much is left up to the imagination in applying the standard.

      1. https://twitter.com/mrddmia/status/1392539957256982530

        He asked her if she knew what “rational basis” was, and she answer “no”.

        Actually, at first she offered up a BS word salad about how she’d research the question closely before it came up in her court. So he asked her again, and forced a no out of her

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