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Potential nominee: Raymond Lohier, former federal prosecutor

Judge Raymond Lohier has flown under the radar in predictions about the next Justice. However, his Haitian heritage, reputation as a federal prosecutor, and unanimous confirmation to the Second Circuit suggest that he deserves a closer look.

Born in 1965, Lohier grew up just outside Philadelphia. He earned his undergraduate degree from Harvard, where he graduated cum laude and studied under liberal theorist John Rawls. He then studied law at New York University, where he was editor in chief of the Annual Survey of American Law. He clerked with Judge Robert Patterson on the U.S. District Court for the Southern District of New York.

Lohier began his career at Cleary, Gottlieb, Steen & Hamilton, working on commercial litigation and corporate law. During this time, he also took pro bono cases in labor law and workplace discrimination. In 1997, he moved to the Civil Rights Division of the US Department of Justice, where he focused on Title VII violations by public entities.

In 2000, Lohier became an assistant U.S. Attorney in the Southern District of New York. He was promoted quickly. As chief of the Narcotics Unit (2006-2007), he supervised a wide range of federal drug and trafficking cases. As chief of the Securities and Commodities Unit (2009-2010), he prosecuted high-profile cases in securities fraud, insider trading, and commodities fraud.

As a prosecutor, Lohier oversaw the prosecution of Bernard Madoff, one of the biggest white-collar cases in the country’s history. He also worked on the Marc Dreier fraud case, winning a forfeiture of over $740 million.

Outside of the law, he served on Brooklyn Community Board 6, which advises elected officials on the district’s well-being. He also worked on a gubernatorial task force, reporting on judicial diversity in the state of New York.

Lohier has relatively few publications that reflect his own opinions before joining the bench. He did speak at an New York University conference on prosecutors and regulation. Disputing the view that prosecutors act as de facto regulators, he indicated that “what I am looking for, and I think what most federal prosecutors look for, is a clear violation of a rule or regulation that’s set by the SEC [Securities and Exchange Commission] or the CFTC [Commodity Futures Trading Commission].”

Lohier was nominated to the U.S. Court of Appeals for the Second Circuit on March 10, 2010. In support, Senator Chuck Schumer praised Lohier’s work at the “front lines of the war against financial fraud.” That December, the Senate confirmed him by a vote of ninety-two to zero.

On the bench, most of Lohier’s opinions have dealt with labor law, class actions, and financial regulation – standard fare for the Second Circuit. A particularly significant case was SEC v. Citigroup. In 2011, Citigroup agreed to pay $285 million to settle certain charges with the SEC. A district judge in the Southern District rejected the settlement, arguing that it was “neither reasonable, nor fair, nor adequate, nor in the public interest”; he wanted to hear the case on the merits, which in his view would bring “transparency [to] financial markets.” The Second Circuit reversed, countering that it is not the “job of the courts” to address the “adequacy” of a settlement. Lohier joined this opinion and wrote a brief concurrence in support of its reasoning.

Lohier served as a judge on the prominent antitrust case United States v. Apple. To compete with Amazon, the Second Circuit concluded, Apple had “orchestrated a conspiracy among the Publisher Defendants to raise the price of ebooks.” The court found that this “unreasonably restrained trade” and violated the Sherman Antitrust Act. In his concurring opinion, Lohier added, “more corporate bullying is not an appropriate antidote to corporate bullying. . . . Marketplace vigilantism would do far more harm to competition than good, would be disastrous as a policy matter, and is in any event not sanctioned” by the law. Just yesterday, the Supreme Court denied Apple’s petition for review of that decision.

Lohier also handled controversial cases on the Second and Fifth Amendments. In New York State Rifle and Pistol Association v. Cuomo, he voted to uphold gun-control legislation in New York and Connecticut. The legislation, passed in the wake of the Sandy Hook shootings, prohibited possession of semiautomatic assault weapons and large-capacity magazines. In Hedges v. Obama, he joined an opinion on the 2012 National Defense Authorization Act. Some activists had argued that the law allowed the military to detain American citizens on American soil. The Court disagreed, holding that the law “says nothing at all about the President’s authority to detain American citizens.”

Finally, in Morales-Santana v. Lynch, Lohier wrote for a panel that struck down a naturalization law on equal protection grounds. Under the law, it was more difficult for an unwed father to confer citizenship on a child born abroad than it was for an unwed mother to do so. This distinction, Lohier wrote, was “not substantially related to . . . a permissible, non-stereotype-based objective.” As such, he concluded, it violated the Fifth Amendment. The federal government has indicated that it will seek review of the decision; its petition for certiorari is due to be filed by the end of the month.

Recommended Citation: Thomas Hopson, Potential nominee: Raymond Lohier, former federal prosecutor, SCOTUSblog (Mar. 8, 2016, 4:16 PM),