Judicial nominee Du advances over GOP objections

WASHINGTON -- Gov Brian Sandoval issued a glowing recommendation this summer for Reno attorney Miranda Du to become a federal judge in Nevada.

"As long as I have known Miranda, she has exhibited great character and is well-respected in the community," the governor said in a letter to Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee.

Sandoval, who had been a federal judge himself, said whenever Du entered his courtroom, "she was always well-prepared and represented her clients with integrity and distinction."

Sandoval, though, did not mention one episode involving Du that was less than complimentary. As a judge in 2008, he signed off on sanctions against the attorney after she was found by U.S. Magistrate Judge Valerie Cooke to have mishandled a case.

After conducting a fresh review of the record, "the court accepts and adopts the magistrate judge's recommendation," he wrote in an Oct. 28, 2008, order.

Sandoval issued a statement Thursday after being asked why he would recommend someone for a federal judgeship after having participated in a discipline finding against her.

"I have reviewed the documents related to my approval of Magistrate Judge Cooke's order, and I find nothing that would cause me to change my belief that Miranda Du would make an excellent federal judge," Sandoval said.

The case, involving Du's defense of the Truckee Meadows Water Authority in a worker grievance, emerged on Thursday as a possible obstacle in the Nevadan's path to the federal bench, even as the Senate Judiciary Committee advanced her nomination.

Du was approved by the committee on a party line 10-8 vote over the objections of Republicans who challenged her credentials and referred to the Truckee Meadows case.

"I am sure there will be more debate" on the Senate floor, Leahy said.

The vote sent Du's nomination to the full Senate, where it will be up to Senate Majority Leader Harry Reid of Nevada -- who recommended her for the post -- to schedule a final confirmation vote.

Reid said in a statement he planned for a "swift confirmation" of Du. The statement did not respond to objections that Senate Republicans raised but said that Du has the support of prominent Nevada Republicans including Sen. Dean Heller, Lt. Gov. Brian Krolicki and Reno Mayor Robert Cashell, as well as Sandoval.

Du, 41, is a partner in the firm of McDonald Carano Wilson LLP, where she has handled employment law and civil litigation. She was a refugee brought to the United States as a child by parents fleeing the communist takeover of Vietnam.

Carl Tobias, a former law professor at the University of Nevada, Las Vegas, said Republican opposition could complicate Du's confirmation, depending on how hard the GOP chooses to fight it.

"My guess is she will be confirmed, but it could be pretty tough going," said Tobias, who now teaches law at the University of Richmond.

"The question for me is will the Republicans let (Du) go forward for a floor debate," Tobias said, or whether they might try to force Reid into a series of procedural moves that might require a difficult 60-vote majority to get her confirmed.

Tobias said it is unusual but not unprecedented for the full Senate to split on district judges, who customarily do not draw as much scrutiny as nominees for the higher courts.

The Senate has confirmed 49 district judges this year. Most were passed by voice vote or by unanimous recorded vote. Only eight drew any opposition.

During the Judiciary Committee's meeting, Grassley and Sen. Mike Lee, R-Utah, focused on Du's role as lead counsel in the Truckee case, which was filed in 2006 by John Woods of Sparks.

Woods, who belonged to the International Brotherhood of Electrical Workers Local 1245, sued the water authority after being told his foreman's job was being eliminated and he was being reclassified as a mechanic.

Woods contended he was being effectively forced out. He charged the water authority "knew or reasonably should have known" he could not perform the mechanic's job because of a medical disability.

In seeking to get the case dismissed, Du either failed to recognize, or did not adequately pursue, the argument that the federal court lacked jurisdiction, according to court documents.

The electrical workers union wrote Du that the case did not belong in federal court and threatened to seek sanctions against her. The attorney proceeded anyway to file a third-party complaint against the union, according to documents.

The case was dismissed for lack of jurisdiction. The union followed up by seeking disciplinary action.

Cooke concluded the complaint Du had filed against the union was faulty, and the attorney had "acted recklessly."

Cooke granted a union motion in August 2007 that Du should be sanctioned, and the Truckee Water Authority was ordered to pay the union's legal fees.

Tobias, the law professor, said issues involving court jurisdiction "are usually clear, but it is not always clear, and sometimes it just has to be thrashed out in litigation."

"It may well be this was a close call," he said. "I assume the judge who imposed the sanction didn't think it was a close call."

Asked about the case at her Senate confirmation hearing last month, Du said she did not believe she acted recklessly.

"We certainly made a mistake and didn't take the best course of action," she said.

Lee said Thursday that Du failed to adequately explain her actions and tried to minimize what he called "egregious errors."

The concept of subject matter jurisdiction "is a doctrine that lies at the heart of the limited reach of the federal court system," he said.

Grassley said he was equally troubled. "I think this demonstrates a lack of humility which is an essential element of being a federal judge."

Lee argued the Truckee case raised questions as to how well Du knows the law. Grassley added Du had limited experience in criminal matters.

"As I have stated before, this is no place for on-the-job training," Grassley said.

Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760.