SDNY Nominee Alison J. Nathan

by Ed Whelan

Tomorrow the Senate Judiciary Committee will hold a hearing on several judicial nominations, including that of a former junior Obama White House lawyer, Alison J. Nathan, to the Southern District of New York.

The ABA judicial-evaluations committee has given Nathan a very low rating of majority “qualified” and minority “not qualified.” In light of the ABA committee’s criteria, the only mystery is how any of the committee members could have rated her “qualified.”

According to the ABA committee’s explanation of its standards for rating judicial nominees, “a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law.” Further, “the Committee recognizes that substantial courtroom and trial experience as a lawyer or trial judge is important”—all the more so for district-court nominees. (The committee “places somewhat less emphasis on the importance of trial experience as a qualification for the appellate courts.”)

Nathan has been a member of a state bar only since 2003. She graduated from law school eleven years ago. Since then, she has clerked for two years (for Ninth Circuit judge Betty Fletcher and for Justice Stevens), worked as an associate with the Wilmer Cutler law firm for four years, taught at law schools for three years, worked in the White House counsel’s office for 18 months or so, and been special counsel to the New York solicitor general for the past nine months. Even if one includes her clerkship years, it would seem that she has at most eight or so years of total “experience in the practice of law”—well short of the ordinary twelve-year minimum.

Nor does she have the “substantial courtroom and trial experience” that the ABA committee says is so “important” for district-court nominees. Of the ten “most significant litigated matters” that she identifies in her Senate questionnaire response, there’s no sign that any of them involved her actually appearing in a trial court to examine witnesses or even to argue a motion. None involved a jury trial.

I have only begun to review the substance of Nathan’s record and will simply note here that she is clearly an advocate of what she has celebrated as the “‘internalization’ of international human rights law arguments” into Supreme Court decisionmaking on constitutional issues. (See her chapter “Arresting Juxtapositions: The Story of Roper v. Simmons” from Human Rights Advocacy Stories.)