NY Judge Goes to Senate as 2d Circuit Nominee

     (CN) – President Obama’s nominee to the 2nd Circuit, Judge Gerard Lynch, is known for his wit and intellect, graduating at the top of his class at Columbia University and again at Columbia’s law school. While he is accused by administration opponents of harboring “activist tendencies” — for example, characterizing an $11.7 million discrimination award as “an eminently reasonable verdict” — the federal judge in Manhattan has not once been reversed by the influential 2nd circuit.

     The Senate Judiciary Committee will determine Thursday whether to allow Lynch’s nomination pass to the Senate floor, where it would face a final vote.
     Alabama Republican Sen. Jeff Sessions, ranking member of the Senate Judiciary Committee, voiced his concern during the first confirmation hearing that Lynch would “harbor activist tendencies and legislate from the bench,” even though the New York judge has never been reversed by the 2nd Circuit.
     “Sessions tries this ‘legislate from the bench’ line every time Obama nominates a judge,” said Russell Wheeler, a visiting fellow at the Brookings Institute, an independent think tank. In the phone interview, Wheeler called Lynch a “stellar candidate.”
     Lynch is known for his intellect and dry wit and was rated “well qualified” by the American Bar Association.
     His appointment to the only vacant seat on the 2nd Circuit would alter the equipoise on the bench, where there are currently six Democrat-appointed and six Republican-appointed judges.
     With Wall Street under its jurisdiction, the 2nd Circuit has a particular influence on the financial sector.
     During his time on the trial court bench in the Southern District of New York, Lynch has presided over a host of major cases. In one, Browne Sanders v. Madison Square Garden, the senior vice president for marketing of the New York Knicks basketball team, Anucha Sanders, was fired after she accused the president of Basketball Operations, Isiah Thomas, of unwanted sexual advances. Sanders sued, claiming her dismissal was the result of retaliation and sex discrimination.
     After the jury awarded $11.6 million to Sanders, Lynch denied the basketball team’s motion to overturn the award, saying, “I think it’s an eminently reasonable verdict.”
     Lynch also presided over a wiretapping case, Center for Constitutional Rights v. Bush, in 2006. The New York Times reported Lynch as having serious reservations about the legality of a National Security Agency surveillance program that monitors the international communications of people in the United States.”
     The paper said, “Lynch appeared troubled by Mr. Coppolino’s argument that the president’s inherent constitutional power was enough to override Congressional enactments.”
     Lynch said at the time that preliminary issues might prevent him from deciding whether the surveillance program was constitutional, and, as it turned out, the case was transferred out of his jurisdiction.
     In a 2009 case, Lynch ruled that the law firm Mayer Brown and partner Joseph Collins, who represented Refco, a financial services company that hid $430 million in losses, were not liable to shareholders unless they made direct misstatements to investors.
     Shareholders charged the Mayer Brown firm with documenting loans that hid Refco’s losses when the firm drafted the company’s Initial Public Offering, the documents necessary when going public.
     Lynch ruled that Mayer Brown was not liable because investors could not reasonably expect the firm to be speaking through the offering documents, and said the documents represented Refco’s statement, not Mayer Brown’s.
     Lynch later revised his ruling. “It is perhaps dismaying that participants in a fraudulent scheme who may even have committed criminal acts are not answerable in damages to the victims of the fraud,” he wrote. “A bright line between principles and accomplices may not be appropriate.”
     He used a colorful example of the mafia to make his point. “When the Godfather orders a hit, he is only an accomplice to murder,” he said, “but he is nonetheless liable as a principal for the commission of the crime.”
     Lynch suggested the law against securities fraud should be changed, saying it “may be ripe for legislative re-examination.”
     Lynch was born in 1951 in Brooklyn, New York and is known for consistently graduating at the top of his class. He graduated first in his class from Regis High School, a Jesuit school in New York. He then attended Columbia College, and graduated as the valedictorian in 1972. He maintained his record at Columbia University School of Law where he graduated at the top of his class with his J.D. in 1975.
     In 1975, he became a law clerk for Wilfred Feinberg of the 2nd Court of Appeals, then for Justice William Brennan of the U.S. Supreme Court in 1976.
     Lynch taught at the Columbia University School of Law between 1977 and 2000, and was vice dean at the school between 1992 and 1997.
     He became an assistant U.S. attorney for the Southern District of New York in 1980, and an associate counsel of the Office of Independent Counsel in 1988 for the Iran-Contra independent counsel’s office, which investigated the Reagan administration for assisting the military activities of Nicaraguan contra rebels even though such aid was prohibited, and for selling U.S. arms to Iran despite U.S. policy against it.
     In 1990, Lynch became chief of the criminal division of the U.S. Attorney’s Office for the Southern District of New York, and then became counsel to the firm Covington & Burling in New York between 1992 and 2000.
     Lynch was appointed in 2000 by then President Bill Clinton to be a district court judge in the Southern District of New York, and was nominated by President Barack Obama on April 2, 2009 to the Court of Appeals.

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