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New 2nd Circuit vacancies to open, giving Biden room to tilt court

4 minute read

The 2nd U.S. Circuit Court of Appeals in New York. REUTERS/Caitlin Ochs

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  • U.S. Circuit Judges Jose Cabranes and Rosemary Pooler to take senior status
  • Cabranes is considered a moderate conservative

(Reuters) - Two long-serving judges on the 2nd U.S. Circuit Court of Appeals have notified the White House they plan to take senior status, opening up new vacancies for President Joe Biden to fill on the closely watched New York-based court.

U.S. Circuit Judges Jose Cabranes and Rosemary Pooler, who were both appointed by former Democratic President Bill Clinton, plan to take senior status upon the confirmation of their successors, circuit executive Michael Jordan confirmed late Wednesday.

Their decisions give the Democratic president the chance to fill five of the 13 seats on the 2nd Circuit, which often hears Wall Street-related securities litigation and civil rights disputes and played host to many high-profile terrorism appeals.

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Pooler told Biden in a letter that she will remain on as a senior judge. "It has been, and remains, the greatest honor and privilege to serve on this Court, and I look forward to continuing to work with my colleagues for many years to come," she wrote.

The White House and Cabranes did not respond to a request for comment.

The decision by Cabranes, 80, in particular could help tilt the direction of the court. Despite being nominated by a Democratic president, he has been seen as a moderate conservative who has voted with Republican appointees on divisive cases.

Six of the court's active judges are Republican appointees, including five nominated by former Republican President Donald Trump.

In August, Cabranes joined the court's six Republican appointees in upholding a search of a Black man who said police had no reason to pat him down and force him into a "spread eagle" position during a traffic stop, which uncovered a loaded pistol and cocaine.

Two judges who concurred in the en banc court's result and three dissenting judges expressed concerns about letting police use pretextual reasons for traffic stops.

They included Pooler, who said it was "our responsibility to safeguard against overbearing or harassing police conduct that does not meet the requisite objective evidentiary justification."

Cabranes and Pooler were also on opposite ends of a split 6-6 decision in July 2020 to not consider a ruling allowing the Justice Department under the Trump administration to withhold grant money from so-called sanctuary jurisdictions.

Cabranes wrote the main opinion denying the petition for rehearing by New York, New Jersey and other states, while Pooler dissented.

Pooler, 83, by contrast has tended to vote with Democratic appointees. In March, she wrote the majority opinion for a 2-1 panel that rejected claims by anti-abortion protesters that laws protecting abortion providers and patients from attacks and threats of force violated their free speech rights.

Biden has already nominated three judges to fill other open 2nd Circuit seats. They included the court's newest member, Eunice Lee, a former public defender who the Senate confirmed in August to become the second Black woman to sit on the court.

The Senate Judiciary Committee in August advanced the nomination of voting rights advocate Myrna Pérez to join the court on a party-line 12-10 vote.

No floor vote on her nomination has been scheduled yet. She is the director of the voting rights and election program at the Brennan Center for Justice at New York University School of Law.

The committee was scheduled on Thursday to also potentially consider the nomination of Vermont Supreme Court Justice Beth Robinson to join the 2nd Circuit and become the first openly LGBTQ woman to serve on any federal appeals court.

But at the request of Republicans, a vote was delayed, prompting Democratic Senator Patrick Leahy of Vermont to complain that his colleagues were holding-up filling the lone Vermont seat on the 2nd Circuit.

(Editor's Note: This story has been updated with details on Pooler's letter to the White House.)

Related stories:

Eunice Lee, longtime NY public defender, confirmed to 2nd Circuit

Senate panel advances Myrna Pérez, voting rights advocate, for 2nd Cir.

Biden circuit nominees defend careers amid Republican criticism

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.

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