Senators Question Experience of 2nd Circuit Nominee

David Ingram

The National Law Journal

Federal judicial nominee Susan Carney told senators at her confirmation hearing Wednesday that she's qualified to serve on an appeals court, despite not having argued before one.

Carney, the deputy general counsel at Yale University, was nominated by President Barack Obama in May to serve on the 2nd U.S. Circuit Court of Appeals. She was one of six judicial nominees who appeared at a hearing of the Senate Judiciary Committee but, as the only appellate nominee, she received the most difficult questions.

Senators questioned Carney about what kind of legal work she's done while at Yale and during two decades of legal work in Washington. She and two Democratic senators focused on the breadth of her experience, while Sen. Jeff Sessions (R-Ala.) asked about time in court.

Under questioning from Sessions, Carney said that she has never argued in a federal appellate court or in the U.S. Supreme Court. But she pointed to her work on appellate briefs, her year clerking for 1st Circuit Judge Levin Campbell and her supervision of other lawyers' work. Later, under questioning from Sen. Al Franken (D-Minn.), she said she has worked on about 15 appellate briefs.

"I've been primarily an appellate lawyer," Carney said.

Sessions said the lack of courtroom experience is not disqualifying, but he expressed concern. "I do believe you learn something from actual participation before a judge. If you want to be a judge, you normally would like to see one in action," he said.

Carney worked at the Washington offices of three law firms beginning in 1979: Rogovin, Huge & Lenzner, as an associate and partner; Tuttle & Taylor, as a partner; and Bredhoff & Kaiser, where she was of counsel. From 1996 to 1998, she was associate general counsel of the Peace Corps.

Sen. Dick Durbin (D-Ill.), who presided over the confirmation hearing, praised what he called Carney's diverse experience. He noted that she was part of the legal team at Bredhoff & Kaiser that represented the Major League Baseball Players' Association during the 1994-95 strike.

At Yale, Carney has supervised litigation and spent time educating university administrators about legal issues, according to a questionnaire she filled out for the Senate. Her cases have involved breaches of contract and intellectual property, including at least one case that went to the 2nd Circuit. The circuit ruled in favor of Yale in 2006 in a patent dispute with a chemistry professor.

Sessions, who is the Judiciary Committee's ranking Republican, and Franken did not stay to question the five district court nominees, leaving only Durbin. The nominees included two for the District of Columbia: James Boasberg, now a D.C. Superior Court judge, and Amy Berman Jackson, a partner at Trout Cacheris.

Jackson said that, as a judge, she would be able to relate to "people from all walks of life." "My trial experience," she said, "has given me a good understanding of the importance of judicial temperament."

Boasberg touted his experience as an assistant U.S. attorney in the District for six years -- a time that he said gave him respect for the grand jury process.

Another nominee, Amy Totenberg for the U.S. District Court for the Northern District of Georgia, faced a question from Durbin about one of her sisters, NPR legal affairs reporter Nina Totenberg. "Can you make sure you will not be affected by anything that's said on National Public Radio?" Durbin joked.

"I've had to operate in the same legal world as her for some time," Totenberg said, "but I am very used to being extremely independent."