Trump win makes WNY legal community wonder

The entire nation is waiting to see how a Donald Trump presidency plays out, but his upset victory poses a few questions of particular interest to the legal community in western New York.

For starters, what does the election outcome mean for the judicial nomination of Kathleen M. Sweet in U.S. District Court for the Western District of New York?

Also, who will have Trump’s ear in selecting a new U.S. Attorney for the Western District to replace William J. Hochul Jr., who retired at the end of October?

And will Trump support the sentencing reform for federal drug crimes, which has received broad bipartisan support?

James A. Gardner

“There is no one in the law school who can answer these questions because no one can answer them,” University at Buffalo School of Law interim Dean James A. Gardner wrote in an email.

“This asks about Trump’s policy commitments at a level of granularity that is impossible to predict, especially from someone who got elected without committing to any specific policies,” Gardner wrote.

Scott Green, a criminal defense lawyer and former assistant U.S. Attorney, said any federal judicial nominations by a Democrat are “now on hold.”

“And after January there’ll be a new sheriff in town,” Green said.

Sweet’s nomination

Sweet, a partner at Gibson, McAskill & Crosby LLP, in Buffalo, was nominated by President Barack Obama in March. She was recommended to Obama by Sen. Charles E. Schumer, to replace U.S. District Court Judge William M. Skretny, who shifted to senior status.

Kathleen M. Sweet

Sweet is one of 59 pending nominations to the bench. But if Trump chooses to make his own appointment, as expected, he could significantly influence the federal court system, which currently has a total of 103 vacancies, including one on the U.S. Supreme Court left vacant by the death of Justice Antonin Scalia.

In New York, besides the vacancy to which Sweet was nominated, there are four other U.S. District Court vacancies — two in the Eastern District, one in the Northern District, and one in the Southern District.

In the Eastern District, Gary Richard Brown was nominated in July 2015 to replace Sandra J. Feuerstein, who reached senior status, and Diane Gujarati was nominated in September to replace John Gleeson, who resigned.

“None of these federal judicial appointments or recommendations are going to be vetted and voted on and confirmed by the Senate between now and Jan. 20, that’s just not going to happen,” said Dennis Vacco, a former New York State Attorney General and U.S. Attorney for the Western District, who is now a partner at Lippes Mathias Wexler Friedman LLP, in Buffalo.

But Vacco said he would not assume that all of the existing judicial nominations will be replaced with new appointments by Trump.

Vacco

“I’m hopeful that the conciliatory tone that was voiced today by the president, the president-elect and Hillary Clinton carries over into governance, then we might see some surprises in these appointments,” Vacco said.

Normal process

Recommendations for a U.S. Attorney appointment typically come from the state’s senior senator’s office, but since both of New York’s senators are Democrats, it’s not clear whether they will have much influence in the decision.

First Assistant U.S. Attorney James P. Kennedy is serving as acting U.S. Attorney for now. Shortly before he left office, Hochul said he would like to see Kennedy appointed to the position permanently.

Regardless of who is named, Green, who worked under both Republican and Democratic bosses, doesn’t expect it will make a big difference.

Green

“I perceived very little change in the way the office operated,” he said.

But Green is eager to find out where Trump stands on the bipartisan effort to reform federal sentencing guidelines for drug crimes.

“Whether or not that is going to continue is probably up in the air now since one of the platforms Donald Trump ran on was law and order. Whether or not he will continue this march toward reducing drug sentences may or may not continue, and that’s probably the thing that would have the most impact right now on criminal practice in federal court,” Green said.