Biden's nomination of San Diego judge won't proceed

The nomination of San Diego County Superior Court Judge Rebecca S. Kanter for a federal judgeship has died.

"Despite efforts to move Judge Kanter's nomination forward, it has become clear that given the current makeup of the Senate she will not be confirmed this Congress," Tess Oswald, communications director for Sen. Alex Padilla, D-CA, wrote in an email Sunday.

Kanter, a longtime federal prosecutor in the Southern District of California who was elected to the state court in November 2022, was nominated by President Joe Biden to fill the vacancy left by Senior U.S. District Judge William Q. Hayes of San Diego when he took senior status in August 2021.

But Kanter never got a nomination hearing before the Senate Judiciary Committee, much less a vote. And Senate Democrats, out of time at this point even though they have a narrow majority until Jan. 5, have given up trying.

Oswald's statement suggests that Kanter could not have been confirmed by Senate Democrats and independents who, when voting together, can overcome Republican opposition.

She emphasized that Senate Democrats are pushing for other California district court nominations, including U.S. Magistrate Judge Benjamin J. Cheeks of San Diego - a former prosecutor and criminal defense attorney whom Biden nominated in October for another Southern District vacancy.

The Senate Judiciary Committee is scheduled to vote Thursday on the nominations of Cheeks and Los Angeles County Superior Court Judge Serena R. Murillo, a longtime prosecutor before she was appointed to the bench.

Democrats are in their final weeks of control of the presidency and the Senate. Republicans and President-elect Donald Trump will take over next month, and Hayes' vacancy will be filled by him.

Joseph W. Cotchett, a founding partner of Cotchett, Pitre & McCarthy LLP and a member of an ad hoc committee that advised the Biden administration on judicial nominees, said Monday that the group had a conference call with White House officials last week about Kanter and other pending nominees and was told they would be dropped.

"They are hesitant to put them up and lose," he said in a phone interview. "It's a very bad decision. ... It's ridiculous they don't want to put up the people they nominated."

Carl W. Tobias, a professor at University of Richmond School of Law, noted that Biden nominated district judges in California as late as October and said he did not understand the Democrats' decision to neither push Kanter's nomination nor force her to withdraw in the 11 months since the president announced his selection.

"They should have either gone forward with her or found a new nominee," he said in a phone interview.

Kanter referred a reporter's phone call to Padilla's office, which confirmed that her nomination would not go forward during the final weeks of this congressional session.

Biden's attempts to fill Hayes' seat have gone nowhere. In December 2022, he nominated San Diego County Superior Court Judge Marian F. Gaston, a former public defender who was sharply criticized by Senate Republicans over a 2008 article she cowrote criticizing residency restrictions for those convicted of sex crimes.

Biden did not renominate her in January, opting instead for Kanter.

But Kanter's nomination didn't get as far as Gaston's. While liberal groups have pressed Biden and Senate Democrats to confirm as many judges as possible before Republicans take over the Senate and the White House in January, Biden administration officials appear not to have made it as much of a priority.

While some of Biden's nominees, like Gaston, have been caught up in controversy over their advocacy of hot-button liberal views or their backgrounds in advocacy groups, Kanter appeared to have been picked to avoid such Republican critiques.

A 2003 graduate of UCLA School of Law, Kanter was an associate in the Washington, D.C. and Los Angeles offices of O'Melveny & Myers LLP before joining the U.S. attorney's office in San Diego, where she served as deputy chief of the office's major crimes section from 2018 to 2019.

Two other Biden nominees for California district court vacancies - State Bar Court Judge Cynthia Valenzuela Dixon for a Central District position, and Alameda County Superior Court Judge Noel Wise for a Northern District position - are awaiting Senate floor votes.

Senate Democrats struck a deal last month allowing the nominations of several district court nominees, including Valenzuela Dixon and Wise, to move forward without as many procedural roadblocks from Republicans in exchange for Democrats dropping four circuit court nominees that they said they did not have the votes to confirm.