A Yale lawyer on the brink of confirmation to federal appeals court

WASHINGTON–As appellate court nominees go, Susan Carney doesn’t have the typical resume.

She hasn’t questioned many witnesses, tried many cases, or starred in many courtroom dramas. For more than 12 years, Carney has worked as a top lawyer for Yale University, where she is now second-in-command in the school’s general counsel’s office.

“It’s a nonstandard background for appointment to an appellate court, but that doesn’t make it a bad idea,” said David Rosen, a New Haven lawyer who has had a handful of interactions with Carney. Rosen said that from what he knows of her, “she is a thoughtful, thorough, sensible, fair person who gives every indication of having the makings of a very good appellate judge.”

Carney’s nomination to the U.S. 2nd Circuit Court of Appeals has had smooth sailing in the Senate so far. She got only a light grilling at her confirmation hearing last fall. The often-partisan Senate Judiciary Committee approved her nomination in a lopsided vote of 16-to-2.

And the full Senate is set to debate Carney’s nomination on Tuesday for two hours, with a vote set for noon. She is among a batch of relatively non-controversial nominees the chamber is debating this month, as lawmakers seek to break a logjam on judicial candidates before the 2012 election kicks into high gear.

The vote on Carney will come nearly one year after President Barack Obama first nominated the New Haven lawyer for the post.

“Susan has enjoyed a diverse and illustrious legal career that has taken her from government service to private practice to the halls of some of the most prestigious educational and research institutions in the world,” then-Sen. Chris Dodd, D-Conn., said in introducing Carney at her confirmation hearing in September 2010.

Born and raised in Massachusetts, Carney attended Harvard University for both her undergraduate and her law degrees. Her parents both served in the U.S. Navy, and Carney grew up the only girl in the family with five boys. At her hearing, she introduced one of her brothers in attendance and said the four others were watching from afar.

Carney got her predilection for the law from her father, who died about eight years ago. “He was the first lawyer I knew and gave me my first lessons in the law,” Carney said after introducing her mother, now retired from her job as a U.S. Navy aircraft engine mechanic, at her September hearing.

After graduating from Harvard, she clerked for a judge on the 1st Circuit Court of Appeals, based on Boston, before entering private practice, mostly with firms in Washington, D.C. In 1996, Carney started a two-year stint as associate general counsel of the Peace Corp before moving to Connecticut to work at Yale.

In between, she married Lincoln Caplan, a journalist who now serves on the editorial board of the New York Times, where he writes about legal issues. They have a college-aged daughter.

In her job at Yale, the 59-year-old Carney has dealt with a wide array of legal issues-from copyright and contracting law to international agreements and IT compliance. In her answers to written questions from the Senate Judiciary Committee, Carney notes that Yale is a “large and complex entity,” with a $2 billion annual budget. On top of the university’s academic and research activities, the university runs four museums, a power plant, and a health plan, among other things.

“My work in the counsel’s office has demanded versatility and breadth,” she stated.

It also has allowed her to avoid many of the hot-button issues–from gun rights to the death penalty–that have tripped up other candidates for the federal bench.

Exhibit A is U.S. District Judge Robert Chatigny, who had also been nominated for a vacancy on the 2nd Circuit. Chatigny withdrew his name amid staunch Republican opposition over his handling of the death-sentence appeals of convicted serial killer Michael Ross. Republicans said Chatigny’s conversations with attorneys in the Ross case indicated he was queasy about the death penalty–arguments that his supporters adamantly rejected, to little avail.

By contrast, when questions about the death penalty came up in Carney’s hearing, there was no paper trail to give any hint of how she might grapple with the issue. Since she’s never served as a judge, she has no issued no legal opinions. Her public remarks and legal papers have centered on issues such as academic misconduct and intellectual property disputes.

The title of two papers she listed in her nomination questionnaire: “Intellectual Property in Action,” and “Faculty Startups: The Tangled Web.”

At September’s confirmation hearing, Sen. Jeff Sessions, R-Ala., noted her lack of criminal experience and probed her views on federal sentencing guidelines in general and the death penalty in particular.

On capital punishment, she said she would “apply the law as I read the law,” and added, “I feel comfortable doing that.”

Sessions asked if she had ever expressed an opinion on the death penalty. “I have not,” she answered.

Similarly, in follow-up written questions, Sessions pressed her on gun rights, asking if she viewed the Second Amendment as an individual right, or a collective right, to bear arms.

She noted that in 2008, the Supreme Court ruled Second Amendment established “an individual right to bear arms,” and she said if she’s confirmed, that case and a similar 2010 decision “would control my analysis of the Second Amendment.”

Sessions said her lack of trial court experience was a concern and made it his main line of inquiry during her hearing.

“Have you ever tried a case yourself as lead counsel or actually been in a trial where you participated in examination of witnesses or arguments before a jury?” Sessions asked Carney.

“I have not tried a case to conclusion,” she said. And while she had deposed witnesses in some cases, she said, “My focus has been on appellate lawyering.”

“Have you argued before a court of appeals?” Sessions asked. “I have not,” Carney answered.

“Well, it’s a lack,” Sessions said. “Not a disqualifying lack,” he added, although he voted against allowing her nomination to proceed to a full Senate vote. The only other “no” vote came from Sen. Tom Coburn, R-Okla., another conservative on the committee. There was no debate before the vote, so they didn’t make public statements explaining their opposition.

In an email, Carney and Yale officials said they were unable to comment before Tuesday’s vote. But in September’s confirmation hearing, Carney strongly disputed the suggestion that her lack of trial experience was a handicap.

“I would have preferred to have that experience given where I am at the moment,” Carney told Sessions. But she said she’d worked on appellate court briefs “extensively” and has been involved with a slew of high-stakes cases, albeit mostly as a supervisor or co-counsel. And she pointed out that she began her legal career as a law clerk for an appellate judge before working in private practice and the government.

That “breadth of experience” would serve her well if confirmed, Carney said.

Democrats on the Judiciary Committee and supporters in Connecticut have strongly echoed that view.

“The job of an in-house lawyer, especially for an entity like a university, has a lot of things in common with being an appellate judge,” said Jonathan Freiman, a New Haven appellate lawyer who has worked with Carney on several cases, including a high-profile dispute between Yale and a Nobel Prize-winning professor who tried to get a secret patent on a chemistry invention. “You need to be thinking about different bodies of law fit in with each other.”

Freiman noted that when Obama came into office, he said wanted to bring a broader diversity of experience to the federal courts. “He didn’t want the same sorts of resumes in every apellate court in the country, and part of the diversy is people who are out there working for clients on a regular basis and aren’t inside a courtroom” all the time.

Carney, he said, fits that bill, with the right mix of legal savvy and real-world experience to sit on the appeals court.

“She understands law and legal philosophy at a very deep level. At the same time she’s very pragmatic,” he said. And, he said, “She’s decisive. She’s not someone who gets lost in process for its own sake.”