Nonprofits in the Biden Administration: Federal Courts

The Capital Research Center maintains a detailed InfluenceWatch hub on the Biden Administration, noting especially the professional backgrounds and affiliations of the president’s nominees and appointees. This post is the fifth in an occasional series on those associations.

Nonprofits in the Biden Administration
Think Tanks | Special Interest Groups
Arabella Advisors and Democracy Alliance
Foundations and Philanthropy | Federal Courts

President Joe Biden wrapped up 2021 having nominated 75 judges to the federal bench, 40 of whom were confirmed by the Senate. That is the most judicial confirmations in a president’s first year since Ronald Reagan. Dozens of vacancies remain, with more sure to come. In fact, Supreme Court Justice Stephen Breyer just announced that he would retire at the end of the current Court session, which will allow President Biden to nominate his first justice to the Supreme Court.

Nonprofits to the Bench

In keeping with the president’s executive branch appointments, a number of his administration’s judicial nominees have had professional connections to nonprofit groups over the course of their careers.

For example, Jennifer L. Rochon—nominated to the U.S. District Court for the Southern District of New York—is general counsel at the Girl Scouts of the USA. Sarah Geraghty, nominated to the Northern District of Georgia, is senior counsel at the Southern Center for Human Rights. Nina Morrison, nominated to the Eastern District of New York, is senior litigation counsel and the former executive director of the Innocence Project, which works to exonerate wrongfully convicted prisoners using DNA evidence.

At least two district court nominees once worked as staff attorneys at the Mexican American Legal Defense and Educational Fund (MALDEF): David Herrera Urias, who has been confirmed to the District of New Mexico, and Hernan D. Vera, a nominee for the Central District of California. Vera also served for a time as president and CEO of the public interest law firm Public Counsel.

Tana Lin, confirmed to the Western District of Washington, has served as the board president of the American Civil Liberties Union (ACLU) of Washington. Holly Thomas, confirmed to the U.S. Court of Appeals for the Ninth Circuit, formerly served on the board of the LGBT rights advocacy group Lambda Legal and was also once an assistant counsel at the NAACP Legal Defense and Educational Fund.

Contentious Nominations

Some of President Biden’s judicial nominations have been rather controversial.

Jennifer Sung. One of the president’s more controversial nominations was Ninth Circuit judge Jennifer Sung, who was ultimately confirmed by a 50-49 vote in the Senate. No Republicans supported her confirmation, partly because of a 2018 letter she signed in opposition to Supreme Court Justice Brett Kavanaugh’s nomination. The letter called Justice Kavanaugh “a threat to the most vulnerable” and “an intellectually and morally bankrupt ideologue.” During her confirmation hearing, she refused to repudiate that characterization.

Sung’s professional background includes a legal fellowship at the Brennan Center for Justice, one of the most prominent and well-known legal advocacy groups on the liberal Left. Before attending law school, she worked as an organizer for two different Service Employees International Union (SEIU) locals, including the large hospital workers’ union 1199SEIU United Healthcare Workers East. Considered by some to be “New York’s most formidable organized interest,” 1199SEIU reported almost $280 million in total receipts on its 2020 Form LM-2 annual report and is highly influential in state and local Democratic politics.

Myna Perez. In some cases, a nominee’s nonprofit background has itself become a salient issue during his or her confirmation process. Myna Perez was director of the voting rights and elections program at the Brennan Center for Justice prior to her nomination (and eventual confirmation) to the Second Circuit. She also served on the board of directors of Sojourners, a connection that attracted Republican ire over an article entitled “The GOP Campaign to Make Elections Less Free,” written by Perez and published by Sojourners shortly before her confirmation hearing.

Nancy Gbana Abudu. A controversial nominee still pending before the Senate is Nancy Gbana Abudu, who has been tapped for a seat on the Eleventh Circuit. Abudu is director for strategic litigation at the Southern Poverty Law Center, a left-wing watchdog and activist nonprofit that has attracted criticism on everything from its finances to its reportedly hostile and discriminatory work environment under former leadership to its inconsistent and overbroad (in some cases, as applied to certain conservative groups and individuals, downright false) use of terms like “hate” and “extremist.” Abudu also served as legal director of the ACLU of Florida, and before that she worked on voting rights at the national ACLU. Her work there included targeting photo ID and proof-of-citizenship requirements as manifestations of “voter suppression.”

Dale Ho. Dale Ho, nominated to the Southern District of New York, currently directs the voting rights project at the national ACLU, where he has been involved in some prominent and politically contentious cases including Department of Commerce v. New York and Trump v. New York. Comments that Ho made at a 2018 conference have recently drawn attention, primarily for his characterization of the Senate and the Electoral College as “anti-democratic” institutions. Earlier in his career, Ho worked at the NAACP Legal Defense and Educational Fund.

More Nominees to Come

President Trump appointed 226 federal judges in four years, so President Biden will doubtless have more seats to fill, though consensus Republican prospects at retaking the Senate in 2022 might well make securing future confirmations more difficult.

If the president continues to draw a portion of his nominees from the ranks of nonprofit groups, some with distinctly left-of-center ideological bents, those groups’ activist positions on issues of political relevance will provide important indicators of how those nominees might rule on the sorts of politically consequential cases that federal courts regularly hear.