The Manhattan judge, who is presiding over the high-profile trial of Ghislaine Maxwell, a longtime aide Jeffrey Epstein, will be nominated for the White House Tuesday night to serve as a prestigious federal appeals court by Senator Chuck Schumer of New York, his office said.
Judge Alison J. Nathan, 49, has a decade in the US District Court for the Southern District of New York. On Tuesday, she was overseeing the selection of the jury in the trial of Ms Maxwell, who is accused of sex trafficking and of helping Mr Epstein recruit, care for and eventually sexually assault girls. Mrs. Maxwell pleaded not guilty.
Defense attorneys and prosecutors said in court arguments that the trial, whose opening arguments are scheduled for November 29, could last six weeks.
Two legal ethics experts said that if Justice Nathan is nominated by President Biden and confirmed by the Senate during the trial, she can still preside over the case. Judges are frequently promoted to appellate courts from lower courts as they actively participate in trials and other cases.
However, Maxwell’s trial, with its connection to Mr. Epstein and the worldwide attention it attracted, is only a matter of routine.
Asked if Judge Nathan would remain in the case if he were nominated to the appellate judges, Edward Friedland, a spokesman for the district court, said in a statement that he “cannot confirm or deny that it is under consideration.”
“But I have every reason to believe that if it is recommended or nominated, it will – as is customary for judges of lower courts who have been nominated to higher courts – in the performance of its day-to-day function and preside over the trial to its conclusion,” Mr. Friedland said.
Mr. Schumer, the Democratic majority leader and the party’s top legislator in New York state, is recommending Judge Nathan to take a seat on the influential US Court of Appeals for the Second Circuit, which is one level below the Supreme Court.
The recommendation means that Judge Nathan will almost certainly be nominated by the White House, as chairs, in the selection of US judges and prosecutors, traditionally subordinate to their party’s top legislator in each state.
Mr. Schumer, in a statement issued Tuesday, said “Judge Nathan’s expertise, legal intelligence, love for the rule of law and his perspective will be invaluable in ensuring that the federal judiciary fulfills its obligation to ensure equal justice for all.”
Schumer’s office also indicated that Judge Nathan will be the second openly gay woman to serve in the Second Circuit.
Judge Nathan was appointed to district court by President Barack Obama in 2011. Previously, she served as special counsel for the New York State Attorney General, in the state attorney general’s office. Prior to that, she was an assistant adviser at the White House and a special assistant to Obama.
Justice Nathan is a graduate of Cornell University Law School and served as a legal clerk to Justice John Paul Stevens during the 2001-2 Supreme Court tenure.
Legal experts said it’s not unprecedented for a federal appellate judge, even after confirmation, to continue hearing cases in lower court.
At least two former Manhattan district court judges—Denny Chen and Richard J. Sullivan—continued to handle cases in the lower court after their appointment to the Second Circuit.
Rebecca Roeep, a professor at New York Law School, said the only theoretical issue she could expect would be if Judge Nathan was quickly confirmed and her new duties removed her “from a very time-consuming trial.”
“But I think that’s unlikely given the timeline here,” said Professor Rovi.
One hypothetical question is whether Ms Maxwell’s lawyers might seek to get the judge to step down because the Biden administration would be in a position to block her promotion if the government did not favor a trial, said Stephen Gilers, a professor at New York University Law School.
But he said in his opinion, based on hundreds of cases involving judicial stepping down, that a promotion such as that of Judge Nathan would not provide a basis for such a request.
“This doesn’t even come close to the kind of interest that leads to stepping down,” he said.
Judge Nathan is known for her independence, and in at least two cases she harshly criticized the US Attorney’s office in Manhattan after being accused of failing to turn over potentially favorable evidence to the defense before trial.