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N.Y.-Based Appeals Court Gives Biden Two More Seats to Fill (1)

Oct. 7, 2021, 5:23 PM

President Joe Biden has two more opportunities to fill seats on the New York-based federal appeals court, opening the door for him to bolster the liberal wing of a court already tipping toward a Democratic-appointed majority.

Judges José Cabranes and Rosemary Pooler, both appointees of President Bill Clinton, will take a form of semi-retirement known as “senior status” effective upon the confirmation of their successors, the court confirmed. The news was first reported by legal journalist David Lat.

“It is one of the first opportunities that Biden has to significantly shift a court of appeals,” Jonathan Adler, a law professor at Case Western Reserve University who follows nominations.

Biden has moved quickly to fill three existing vacancies on the Second Circuit, which has 13 judgeships. Those vacancies included a chance to replace a George W. Bush appointee and “flip” the court back to a majority of Democratic appointees. President Donald Trump had given it a majority of Republican appointees.

While party of a judge’s appointing president isn’t an exact proxy for judicial philosophy, it is often used as a way of measuring the leanings of a particular court.

Cabranes is an exception. Adler described Cabranes as “not as easy to type-cast ideologically.” In the past, he has sided with the court’s conservatives on issues involving race, for example, Adler said. That makes his vacancy all the more important for the Biden administration.

“That’s a seat I expect to shift pretty dramatically to the left,” said John Collins, a professor at George Washington University who tracks nominations.

The shift could have an impact on en banc reviews, or rehearings before the full court.

Over the past few years, while the court has had a conservative majority, Collins said he noticed the Second Circuit hearing more cases en banc, departing from the circuit court’s traditional policy of disfavoring the practice.

“It’ll be curious to see if that stops, or whether they take different cases en banc where the liberal majority uses its muscle now to rehear the case it wants,” Collins said.

The Second Circuit—which encompasses New York, Connecticut and Vermont—is a chief venue for cases involving corporations and Wall Street.

New Bench

The new seats also give the administration more chances to fill the court with younger, diverse, liberal nominees.

Both Cabranes and Pooler, both in their 80s, will stay on the court and take on a lighter workload as senior judges, so their experience isn’t lost, and their replacements will likely be in their 40s, said Carl Tobias, a law professor at University of Richmond who follows judicial nominations.

Biden has tended to pick nominees who are diverse in terms of race, gender, and sexual orientation, Tobias said.

Biden already filled one existing vacancy with Eunice C. Lee, who was confirmed in August, and he has nominees in the pipeline for the two other seats.

Voting rights lawyer Myrna Pérez awaits a vote from the full Senate and Vermont Supreme Court Justice Beth Robinson was scheduled to get a vote Thursday in the Senate Judiciary Committee. The vote was held over for a second time due to attendance issues, a committee spokeswoman said.

Those existing nominees each bring diversity to the court. Lee is the second Black woman ever on the Second Circuit and the only judge with experience as a public defender. Perez would be the only Latina on the court and Robinson would be the first openly LGBT woman to serve on any federal circuit court.

Going Out Together

The concurrent retirement announcements by Cabranes and Pooler, who are seen as ideological opposites of the court’s liberal wing, don’t appear to be a coincidence.

“It’s a very Second Circuit way to go,” Collins said. “The Second Circuit has always prided itself on collegiality and working together.”

Cabranes, the first Puerto Rican judge on the court, was considered for the Supreme Court by both Clinton and George W. Bush, and a clerkship in his chambers could be a springboard to one at the Supreme Court, Collins said.

He often departed from the court’s liberals, including then-Second Circuit colleague Sonia Sotomayor, on racial issues, Collins said. A notable example was his dissent from the denial of an en banc rehearing of a case about discrimination in the New Haven Fire Department that eventually made its way to the Supreme Court in Ricci v. DeStefano.

Pooler, on the other hand, is known as one of the most liberal members of the Second Circuit.

“I think it’s a nice, appropriate send off that these two, who have different philosophies, can come together and say, ‘let’s not see who outlasts the other one, let’s call it a good career at the same time, and go out together,’” Collins said.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com