The Art Of The Possible: New York Nominees For Federal Judgeships And Prosecutor Posts

The Trump administration shows a willingness to compromise on nominees.

If you want to sit on the federal bench in New York, you’ve got to make it past this guy: Senator Chuck Schumer (D-NY). (Photo by Aaron P. Bernstein/Getty Images.)

Last week, while doing some reporting for a recent roundup of potential judicial nominees, I spoke to a source who made an interesting point: the Trump administration’s judicial nominees might be even “purer” than those of President Ronald Reagan, author of the playbook that the Trump White House Counsel’s office appears to be following when it comes to nominations.

President Reagan appointed many judges to the federal bench who were smart, young, and conservative. President Trump is nominating potential judges who are very smart, very young, and very conservative.

Why is this happening? President Reagan, a national political figure for many years before he assumed the presidency, had lots of allies and supporters to reward. So his judicial picks mixed “merit” — defined from a conservative perspective as intelligence, youth, and conservatism — with more pedestrian political considerations. As a result, Reagan nominees included young superstars — see, e.g., Joan Biskupic’s helpful list of eight greats, judges who in these pages go by just their last names (Posner! Easterbrook! Wilkinson! Kozinski!) — but Reagan nominees also included lawyers who had served the Reagan campaign, the Republican Party, or both. In addition, as a more conventional and mainstream politician, President Reagan was willing to make compromises on judgeships to advance other aspects of his agenda.

President Trump, in contrast, came into office with relatively few backers in the Republican Establishment. Consequently, he now has less of a need to dole out federal judgeships as patronage spoils. And he also, for better or worse, seems disinclined to cut deals with Democrats — even if it means nothing gets done. Hence Trump’s ability and willingness to put up “purer” nominees than even Reagan.

But even President Trump must cut deals when it comes to judicial and U.S. attorney nominees. That’s especially true here in the great state of New York, home to two Democratic senators, Chuck Schumer and Kirsten Gillibrand — one of whom also happens to be Senate Minority Leader (Schumer).

Yesterday, Zoe Tillman of BuzzFeed News reported on the list of nominees for New York judgeships and U.S. attorney posts that the White House sent to Senators Schumer and Gillibrand last month. It’s an eclectic mix of names that fit the Trump judicial nominee profile and names that can get confirmed. Quoting a source, Tillman describes the list as “intended to spur a dialogue with New York’s senators… about a compromise package of nominees.”

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First up, here are the candidates for the coveted Second Circuit seats:

The list sent to Schumer and Gillibrand in July includes four names for the US Court of Appeals for the Second Circuit, where there are two vacancies: US District Judge Richard Sullivan; Matthew McGill, a partner at the law firm Gibson, Dunn & Crutcher in Washington; Nicholas Quinn Rosenkranz, a professor at Georgetown University Law Center; and Michael Park, a partner at the law firm Consovoy McCarthy Park in New York.

I mentioned Judge Sullivan back in May as a potential nominee. As for the other three, they fit the Trump profile: they’re young, conservative, high-powered lawyers with prestigious clerkships under their belts (then-Judge John Roberts for McGill, Justice Anthony M. Kennedy for Rosenkranz, and Justice Samuel A. Alito for Park). They’ve all made prior appearances in the pages of Above the Law: for Legal Eagle Wedding Watch (McGill), for leaving Biglaw to launch a boutique (Park), and for eloquently defending the late Justice Antonin Scalia (Rosenkranz).

Judge Sullivan and Mike Park have obvious New York ties. What about McGill and Rosenkranz? State ties matter less for circuit judgeships than for district judgeships, but the issue still does arise (at least for the regional courts of appeals, as opposed to the D.C. or Federal Circuits). For Matt McGill, his family is from the Empire State and he grew up here. The same is true for Nick Rosenkranz — who, despite being a professor at Georgetown Law, actually resides mainly in Manhattan (where he has the added community tie of producing Broadway plays, when not busy writing articles for the Harvard Law Review and the Stanford Law Review).

The next juiciest plum: a successor to the high-profile, (in)famously fired Preet Bharara as U.S. Attorney for the renowned Sovereign Southern District of New York. The envelope, please:

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The White House is considering Geoffrey Berman, a New Jersey attorney and one of Rudolph Giuliani’s law partners, to lead the US attorney’s office in Manhattan — one of the most high-profile federal law enforcement jobs in the country….

Berman, who co-leads the New Jersey office of the law firm Greenberg Traurig, would bring Justice Department experience to the job, having served as an assistant US attorney in the Southern District of New York from 1990 to 1994, according to his law firm bio online.

Interesting — and surprising. Berman wasn’t among the names I was hearing bandied about for this job, such as Marc Mukasey, also of Greenberg Traurig; Edward O’Callaghan, of Clifford Chance; David Miller, of Morgan Lewis; and Edward McNally, of Kasowitz Benson (more on him later). Perhaps the feuding camps backing the various contenders knocked each other out, and Berman emerged as the compromise candidate. (Cf. the emergence of Noel Francisco as solicitor general nominee after the George Conway v. Chuck Cooper stalemate.)

Another reason Geoff Berman is an S.D.N.Y. surprise: he was supposedly under consideration to serve as U.S. Attorney for New Jersey, the state in which he resides. But some members of the New Jersey bar, and some current and former AUSAs I spoke with (I used to work in that office), questioned Berman’s status as a New Jersey attorney. So it seems he has been moved to the even more prestigious post of U.S. Attorney for the Southern District.

This might be a more natural fit, given Berman’s prior service as an AUSA in the Southern District. And given Berman’s close ties to Jared Kushner, President Trump’s son-in-law and prominent adviser, it’s not shocking to see Berman get such a plum post.

(Query: does this spell good news for the U.S. attorney chances of Craig Carpenito, the former New Jersey AUSA and current Alston & Bird partner who was being pushed by Chris Christie to take Christie’s old job? Quite possibly. Carpenito enjoyed greater support than Berman within the U.S. attorney’s office and within the New Jersey bar, but was hitting the Berman/Kushner roadblock. Maybe he’ll move forward now that Berman has been dispatched to New York.)

What about possible nominees for judgeships in the Southern District? Zoe Tillman reports:

For the US District Court for the Southern District of New York, the White House in July sent three names: Lewis Liman, a partner at the law firm Cleary Gottlieb Steen & Hamilton in New York; US Bankruptcy Judge Mary Kay Vyskocil, who sits in the Southern District; and Daniel Sullivan, a partner at Holwell Shuster & Goldberg in New York.

As of mid-July, there was only one vacant seat in the Manhattan court, but two more seats opened up in August.

Lewis Liman? He has a gilded résumé, including a Supreme Court clerkship (for Justice John Paul Stevens) and service as an AUSA in the S.D.N.Y., but he’s not exactly on #TeamTrump. If you look at his history of political contributions, you’ll see names like Clinton, Obama, Schumer, and Gillibrand. So mark Liman down as the Schumer/Gillibrand bait on this slate.

(Fun fact: Lewis Liman is the son of Arthur Liman, the late, great lawyer, and the brother of director and producer Doug Liman, responsible for The OC, among many other hits. “Welcome to the S.D.N.Y., bitch!”)

The two other names, Mary Kay Vyskocil and Dan Sullivan, are more typical Trump picks. Vyskocil, a highly regarded litigator and longtime Simpson Thacher partner before taking the bankruptcy bench, donates exclusively to Republican candidates. Sullivan is a textbook Trump nominee, a youthful former SCOTUS clerk to a conservative justice (Scalia).

Crossing the river into the Eastern District of New York, aka Brooklyn, here are the U.S. Attorney possibilities:

The White House sent two names to the senators for US attorney for the Eastern District of New York, which is also known for handling financial crimes cases as well as terrorism and mob prosecutions, and counts former attorney general Loretta Lynch among its alumni: Edward McNally, a partner at Kasowitz Benson Torres in New York — the firm of Trump’s former lead outside counsel in the Russia investigation, Marc Kasowitz — and Richard Donoghue, a former Eastern District prosecutor who is now at CA Technologies, according to his LinkedIn profile.

So the game of U.S. attorney “musical chairs” continues. Ed McNally, mentioned above as a possible Southern District nominee, could end up leading the Eastern rather than Southern District.

As for the E.D.N.Y. bench:

For the US District Court for the Eastern District of New York, where there are four vacancies, the White House pitched four names: US Magistrate Judge Gary Brown, who sits in the Eastern District; Diane Gujarati, a federal prosecutor who was nominated to the Eastern District court by President Obama; Eric Komitee, a former federal prosecutor in the Eastern District who is now a lawyer for Viking Global Investors, according to his LinkedIn profile; and Rachel Kovner, a lawyer in the US solicitor general’s office.

This batch of four looks like a sensible compromise package. Gary Brown and Diane Gujarati are the Democrats, and Eric Komitee and Rachel Kovner are the Republicans.

Gary Brown was recommended for a district judgeship on the E.D.N.Y. by Senator Schumer back in 2015. Diane Gujarati was actually nominated by President Obama to that court, upon the recommendation of Senator Schumer. So Senators Schumer and Gillibrand should have no issues with them.

Eric Komittee is a Republican, at least based on his campaign contribution history (in support of candidates like Trey Gowdy, Mitt Romney, Marco Rubio, Paul Ryan). But he also served as a federal prosecutor in the Eastern District for seven years, including service as chief of the business and securities fraud unit, which should help his chances considerably.

The outlier here: Rachel Kovner. She has by far the best credentials, as a Harvard College and Stanford Law grad who clerked for Justice Scalia and now works in the U.S. Solicitor General’s office, and by far the weakest Eastern District ties. (Her father, billionaire hedge fund manager Bruce Kovner, was born in Brooklyn — but $5.5 billion later, he lives on Fifth Avenue in Manhattan.)

Finally, for the posts up in Winterfell and The Wall the Western and Northern Districts of New York (which cover Buffalo/Rochester and Albany/Syracuse, respectively):

The White House proposed nominating the lawyers serving as acting US attorneys in the western and northern districts of New York — James Kennedy Jr. and Grant Jaquith, respectively — for the permanent positions.

It’s hard to imagine a safer move than nominating the two acting U.S. attorneys to serve as the permanent U.S. attorneys. Clearly the Trump administration wants to spend its political capital on things other than the U.S. attorney jobs for the Western and Northern Districts.

And in the federal trial courts in the western and northern districts, the White House sent one name for each of the lone vacancies in those courts: John Sinatra Jr. of the law firm Hodgson Russ in Buffalo, New York, for the western district, and John Sarcone III, who runs his own practice in White Plains, New York, for the northern district.

Sinatra served in President George W. Bush’s administration as a lawyer in the Commerce Department, and before that, he worked as an associate at Jones Day for more than eight years. Presumably he has ties to Trump legal circles through these prior posts.

Sarcone is a more curious pick. The Northern District of New York includes Albany, Binghamton, Plattsburgh, Syracuse, and Utica. Sarcone works out of White Plains, which is actually part of the Southern District of New York.

Taken colletively, this collection of potential nominees — remember, they haven’t been officially nominated yet, just floated by the White House to the senators — is an interesting group. Some are “Trumpy,” in terms of being young, high-powered, and conservative, but others seem just like well-regarded, long-serving public servants — current or former federal prosecutors, or non-Article III judges (magistrate or bankruptcy). On the whole, they’re less overtly “political” than some of Trump’s prior nominees. And at least one, Lewis Liman, is a dyed-in-the-wool Democrat.

One might quibble with a name here or there, but overall this slate seems like a very solid starting point for negotiations between the White House and the New York senators. And if anyone knows how to cut a deal, it’s the administration of President Donald “Art of the Deal” Trump… right?

The White House Has Pitched a Nominee For Manhattan’s Powerful US Attorney Opening [BuzzFeed News]

Earlier:


DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.