A San Diego Superior Court judge who was nearing confirmation to a lifetime position on the federal bench, but needed to be nominated again in the new year, has asked President Joe Biden not to renominate her for the federal judgeship.
California Sen. Alex Padilla’s office on Wednesday told the Union-Tribune that it received notice that Judge Marian Gaston “asked the administration not to resubmit her nomination.”
Gaston declined Thursday to elaborate on her decision. She had been nominated by Biden in December 2022 to fill the vacancy of U.S. District Judge William Hayes, who assumed senior status in 202, leaving him on the bench, but with a reduced caseload.
News of Gaston’s withdrawal came the same day the White House announced it was nominating another Superior Court judge, Rebecca Kanter, for a different vacancy on the local federal bench. If confirmed, Kanter, a longtime federal prosecutor who was elected to her state court position in 2022, would fill the vacancy of U.S. District Judge Gonzalo Curiel, who in September assumed senior status.
California Sens. Alex Padilla and Laphonza Butler commended Biden’s nomination of Kanter in a joint statement, saying she “has demonstrated a strong commitment to public service throughout her career.”
They described Kanter as the “great-granddaughter of Jewish immigrants who fled persecution in Eastern Europe” and pointed out her role as the civil rights coordinator while working in the U.S. Attorney’s Office in San Diego, where she was an assistant U.S. attorney from 2006 to 2022.
She graduated magna cum laude from the University of California, Irvine in 2000 and earned her law degree from the UCLA School of Law in 2003. She worked in private practice in Washington, D.C., and Los Angeles, and clerked for a federal judge before becoming a prosecutor.
“Judge Kanter will undoubtedly bring her profound dedication to justice, fairness, and equality to the Southern District of California,” the senators said.
As for Gaston, she has been a Superior Court judge in San Diego since 2015 and before that spent nearly 20 years as a deputy public defender with the San Diego County Public Defender’s Office.
Last May, the Senate Judiciary Committee voted 11-10 along party lines to approve her nomination, but the full Senate failed to take a vote on her confirmation, along with several others, before the first congressional session ended.
Typically, such nominations would simply carry over to the next session of Congress — unless there is an objection, according to Carl Tobias, the Williams Chair in Law at the University of Richmond School of Law, who closely follows judicial nominations.
“Republicans objected to her and a whole number of other people” nominated for judicial and executive branch positions, Tobias said. Gaston was one of 19 judges to face such an objection.
That meant Biden was required to renominate Gaston and the others during the new congressional session, though Tobias said the process to get them through the judiciary committee and confirmed by the full Senate was expected to move quickly — maybe as soon as next week — since they’d previously been on the doorstep.
But when the White House announced renominations on Monday, Gaston and four others were not on the list. Tobias said Gaston’s absence remained a mystery until Padilla’s office confirmed that she’d withdrawn from consideration. Reuters reported Tuesday that two of the other four had also withdrawn their names.
“I think it’s unfortunate what happened,” Tobias said. “I think she would have been confirmed if she would have been willing to go forward. But that’s her choice.”
Tobias noted that some Republicans on the judiciary committee “intimated that she was soft on crime, and would be if confirmed to the bench,” because of her work as a public defender focused on restorative justice. “I’m not sure if that was fair criticism or should have stopped her nomination,” Tobias said.
GOP senators on the committee had criticized a paper she coauthored arguing sex offender registry requirements were having unintended consequences, such as homelessness.
Now the process to fill Hayes’ vacancy must start from scratch. California’s senators must recommend a new nominee to the Biden administration. If the president nominates that person, he or she must be approved by the Senate Judiciary Committee and then confirmed by the full Senate.
Tobias said that Kanter’s recent nomination could help speed up the process — if she was one of a few top candidates identified by the judicial nomination committees of both Padilla and Butler, the senators could “go back to that pool.”
If California’s senators and the White House do move quickly, the new nominee could move at roughly the same pace as Kanter. “We look forward to working with our Senate colleagues to swiftly approve her nomination,” Padilla and Butler said Wednesday in their joint statement.
