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Republicans Cast Second Circuit Nominee as Soft on Crime (2)

Dec. 15, 2021, 2:46 PMUpdated: Dec. 15, 2021, 11:28 PM

Alison Nathan, a federal appeals court nominee overseeing the sex-trafficking trial of Ghislaine Maxwell as a federal trial court judge, faced Republican questions at a Senate confirmation hearing about how she’s handled criminal cases.

Nathan, who has served on the Southern District of New York for ten years, is now nominated for a seat on the U.S. Court of Appeals for the Second Circuit.

Her role overseeing the trial of Maxwell, alleged to have enabled Jeffrey Epstein, didn’t come up during her appearance before the Senate Judiciary
Committee Wednesday.

Instead, Republicans—including Sens. Ted Cruz (Texas) and Josh Hawley (Mo.)—focused on Nathan’s recent decisions to grant compassionate release or reduced sentences to prisoners and her prior writings as an academic and private attorney in opposition to the death penalty.

Nathan said she’s denied the “vast majority” of petitions seeking early release during the pandemic, and assured lawmakers that she’d adhere to Supreme Court precedent upholding the constitutionality of capital punishment.

Democrats praised her record on the federal bench and in the Obama administration, when she was an attorney in the White House counsel’s office.

“During her tenure she has presided over many high profile and difficult cases, some of which have gained attention in the press,” said Senate Majority Leader Chuck Schumer (D-N.Y.), who introduced Nathan to the panel. “All the way she’s earned praise for her brilliance, her skill as a fair and neutral arbiter, and her unbroken fidelity to the rule of law.”

Republicans raised concerns that she’d bring political activism to the federal appellate court. Pressed to articulate her personal views on the death penalty and other hot-button issues, such as immigration and gun rights, Nathan said she would faithfully apply the law.

For instance, she told Cruz she’s had death-eligible cases before her court, but the death penalty was never actually sought.

“I’m fully prepared to implement congressional law consistent with the death penalty,” Nathan later said to Hawley.

The Missouri Republican, frustrated with Nathan’s responses, said, “I find it a little irritating that you’re fencing with me this way.”

If confirmed, she’d be the second openly LGBT woman to serve as a U.S. appeals court judge.

The panel also considered five nominees for district court judgeships: Georgette Castner for the District of New Jersey; Ruth Montenegro for the Southern District of California; Julie Rubin for the District of Maryland; Cristina Silva for the District of Nevada; and Anne Traum, also for Nevada.

Biden will have another federal appeals court seat to fill. Thomas Ambro, a Third Circuit judge who was nominated by President Bill Clinton and confirmed in 2000, plans to take senior status upon confirmation of his successor. Ambro notified the White House of his plans Tuesday, according to Joel McHugh, the Third Circuit’s deputy circuit executive.

New Nominees

Earlier Wednesday, President Joe Biden announced plans to nominate nine federal trial court judges, including a partner at Dechert LLP, the chief counsel of the Girl Scouts of the United States of America, and a California judge who would be the first from the Navajo Nation ever to serve on the federal bench.

Sunshine Suzanne Sykes, who has served as a California Superior Court judge in Riverside County, Calif., since 2013, will be nominated to the U.S. District Court for the Central District of California, the White House said Wednesday in a statement. She is a member of the Navajo Nation and would be the fifth American Indian ever to serve on the federal bench.

Hector Gonzalez, who would serve in the Eastern District of New York, has been a partner at Dechert LLP since 2011, where he chairs the firm’s global litigation practice. He was previously a partner at Mayer Brown and an assistant U.S. attorney in the Southern District of New York.

Jennifer Rochon, who would sit in the Southern District of New York, is the Girl Scouts general counsel and a former partner at Kramer Levin Naftalis & Frankel.

The nominees announced Wednesday are the eleventh round put forward by Biden and include four seats in California, four in New York and one in Wisconsin.

The list of planned nominees also includes:

  • Jessica Clarke, the chief of the New York State Office of Attorney General’s Civil Rights Bureau, to a seat on the Southern District of New York;
  • Nina Morrison, senior litigation counsel for the Innocence Project, to a seat on the Eastern District of New York;
  • Sherilyn Peace Garnett, a California Superior Court judge in Los Angeles County, to the Central District of California;
  • Kenly Kiya Kato, a U.S. magistrate judge, to the Central District of California;
  • William Pocan, a Milwaukee County Circuit Court judge, to the Eastern District of Wisconsin; and
  • Fred Slaughter, a California Superior Court judge in Orange County, to the Central District of California
(Updates with Ambro's plan to take senior status.)

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com
To contact the editor responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com;Seth Stern in Washington at sstern@bloomberglaw.com

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