April 26, 2015

Empty chairs at empty federal benches

Michael I Rothstein
Michael I Rothstein
Michael T. Brody
Michael T. Brody
By Patricia Manson
Law Bulletin staff writer

Political affiliations didn’t seem to matter when the late Terence T. Evans was tapped 20 years ago to serve on Chicago’s federal appeals court.

Evans was nominated to the 7th U.S. Circuit Court of Appeals by President Bill Clinton. But he received support from Republicans — including Tommy Thompson, then the governor of Evans’ home state of Wisconsin, and U.S. Sen. Orrin G. Hatch of Utah, a leading member of the Judiciary Committee.

The climate, however, has changed since 1995.

More than five years after Evans took senior status — and nearly four years after he died — his seat is still open.

While the vacancy is the oldest on the nation’s federal appeals courts, it’s not unusual nowadays for judgeships to remain unfilled for long periods of time.

That’s because nominations to the federal bench are now more likely to be met with resistance in the U.S. Senate.

Sometimes, the resistance stems from opposition to a particular nominee. In other cases, it centers on a political dispute that has nothing to do with the person chosen to fill a vacancy on a court.

Whatever the cause, political squabbling can keep a seat on the bench open for years.

For example, a candidate for Evans’ seat withdrew her name from consideration 3½ years ago after critics blasted her nomination. No one has been put forward since.

Another seat on the 7th Circuit opened up in February, when Judge John Daniel Tinder took senior status. He intends to retire from the bench in May.

While they differ on some details, observers seem to be united in the belief that both judgeships could remain unfilled until after President Barack Obama leaves the White House in January 2017.

In the past couple of decades, said professor Charles G. Geyh of the Indiana University Mauer School of Law, the Senate has tended to slow down action on nominations during a president’s last two years in office.

Both Democrats and Republicans are guilty of employing that tactic, he said.

There are too many variables, though, to forecast accurately what will happen if Obama nominates any candidates to the 7th Circuit.

But if forced to make a prediction, Geyh said, he would guess that the two seats will be empty at the start of 2017.

“I think Republicans will find a way to slow things down so no one is confirmed in the last two years of Obama’s administration,” he said.

Harold J. Krent, dean of IIT Chicago-Kent College of Law, said a president often has trouble getting his nominees confirmed when the White House and Senate are controlled by different parties.

Obama is no exception, he said.

But while there is no guarantee of success, Krent said, the president could improve his chances by offering the Senate something it wants in return for approval of his candidates.

“He’ll have to do some horse trading in order to get the appointments through,” he said. “So I think it’s possible, but it’s not a foregone conclusion.”

Michelle D. Schwartz of the Alliance for Justice in Washington, D.C., is more optimistic. The association is made up of more than 100 organizations committed to an impartial federal judiciary and to ensuring Americans have a say in government decision-making.

Even though control of the Senate flipped to Republicans in the November general election, Schwartz said, history shows there is a good chance Obama will succeed in placing his selections on the 7th Circuit.

Ronald Reagan, Clinton and George W. Bush also were two-term presidents confronted in their last two years in office with a Congress controlled by the opposition party, Schwartz said.

“They managed to get a good number of nominees confirmed,” she said. “Twenty percent of their overall judicial nominees were confirmed in the final two years.”

The Obama administration may not share that view.

The White House already has alleged that Obama’s judicial nominees wait for confirmation votes much longer than his predecessors’ choices did.

Two years ago, the administration pointed to figures showing that 78 percent of Obama’s appeals court nominees had waited longer than 100 days for a vote. Only 15 percent of Bush’s nominees, they said, waited that long.

There are 179 authorized judgeships on the nation’s federal appeals courts. Eleven of them are on the 7th Circuit, which hears cases from Illinois, Indiana and Wisconsin.

In a long-running practice, six of the 7th Circuit’s seats are filled by candidates from Illinois, three from Indiana and two from Wisconsin. Evans filled one of the Wisconsin seats, while Tinder filled one of the Indiana seats.

The Administrative Office of the U.S. Courts reported that eight of the federal appellate court seats in the nation, including Evans’ and Tinder’s, were vacant as of April 9.

In July 2010, Obama nominated Victoria F. Nourse, then a professor at the University of Wisconsin Law School, to fill Evans’ seat.

Obama renominated Nourse after the Senate failed to act on her nomination — as well as those of several other candidates — before the end of 2010.

But action on Nourse’s nomination was blocked by U.S. Sen. Ron Johnson of Wisconsin, a Republican who took office in January 2011 after defeating Democratic incumbent Russ Feingold in the general election.

Johnson contended Nourse’s nomination should be treated as new business because no vote had been taken on it before the end of the previous congressional term.

Johnson also contended that Nourse had few ties to the state and was not known in the legal community. Nourse had been on the Wisconsin law school faculty since 1994 but had taught as a visiting professor at several other schools.

Johnson himself came under fire from critics who included law professors from around the country.

In a letter to the top Democrat and top Republican on the Senate Judiciary Committee, the professors argued Johnson was improperly asserting a senator’s privilege to object to a potential nominee.

Nourse was first nominated six months before Johnson took office, the professors wrote, so she was no longer a potential nominee when the senator stopped action on her nomination.

And the professors wrote that “a nominee of sterling credentials” should not be the subject of “unending delay.”

Nourse’s father-in-law, Judge Richard D. Cudahy of the 7th Circuit, also was not pleased that a confirmation vote was blocked.

In comments at the 2011 convention of the American Constitution Society for Law and Policy, Cudahy described his daughter-in-law as “a prodigious legal scholar” who “has become entangled in some sort of ambush of newly discovered Senate rules, and even denied a hearing.”

Cudahy warned that delays in nominating and confirming candidates to the federal bench could result in most judicial work being done by 80- and 90-year-olds.

Cudahy, who is now 89, was appointed to the 7th Circuit in 1979 by President Jimmy Carter. Evans filled Cudahy’s seat on the bench when Cudahy took senior status in 1994.

Johnson’s opposition to Nourse’s nomination drew praise as well as criticism.

Among those pleased was the Judicial Action Group, an organization based in Washington dedicated to ensuring judges don’t legislate from the bench.

A petition posted on JAG’s website described Nourse as a “pro-abortion, anti-marriage” candidate who “wants to rewrite the Constitution.”

JAG was joined by more than 40 conservative critics who in a September 2011 letter to members of the Senate praised Johnson’s “principled opposition” to Nourse’s nomination.

Nourse, the critics contended, rejects “a literal reading of the Constitution” and favors “judicial usurpation of legislative power.”

Nourse ultimately asked Obama to withdraw her name from consideration. She became counsel to Vice President Joe Biden last year.

In 2013, Johnson and his newly elected Democratic colleague, Tammy Baldwin, agreed to change the composition of Wisconsin’s Federal Nominating Commission. The group screens applicants for federal judgeships and U.S. attorney positions in the state.

Previously, the senator whose party was represented in the White House selected more commission members than the other senator. Under the new system, each senator chooses half the members.

The commission currently is led by Madison attorney Michelle Behnke and Oshkosh lawyer Paul G. Swanson. The panel screened James D. Peterson, who was confirmed by the Senate in May 2014 to a trial judgeship in the Western District of Wisconsin.

But efforts to fill Evans’ seat on the 7th Circuit seem to be moving slowly.

Last year, the commission put out a call for candidates. Applications were due by Sept. 8. Commission members declined to say how many people have applied for the position or how the screening process is proceeding.

Indiana’s senators are equally close-mouthed about the search for Tinder’s successor.

Republican Dan Coats and Democrat Joe Donnelly do not have a formal process for searching for judicial candidates to recommend to the president.

Staff members said both senators will advise the president on possible nominees for Tinder’s seat on the 7th Circuit, but offered no details.

Observers say being short of active judges doesn’t seem to affect the court’s day-to-day work.

Michael I Rothstein, a Tabet, DiVito & Rothstein LLC partner, said a strong work ethic likely plays a major role in that state of affairs.

“The 7th Circuit, I think, is one of the hardest-working and most diligent courts in the entire circuit system,” said Rothstein, the treasurer of the Federal Bar Association’s Chicago chapter and a former president of the Illinois Appellate Lawyers Association. “They definitely keep those cases moving.”

Michael T. Brody, a Jenner & Block LLP partner who becomes president of the 7th Circuit Bar Association in May, concurred.

“They have managed Evans’ vacancy seamlessly,” he said before Tinder took senior status. “The court schedules many cases for oral argument, schedules argument promptly and issues its opinions shortly after argument.”

Brody noted that the court’s active and senior judges are assisted by their counterparts on the federal trial courts.

When he was the 7th Circuit’s chief judge, Frank H. Easterbrook revived the practice of having district court judges sit by designation on the appeals court. The current chief judge, Diane P. Wood, has continued that policy.

Even though the 7th Circuit has kept up with its work, Krent said, it’s better if it’s fully staffed.

“It’s really important just to get another voice on the 7th Circuit,” he said, “and share the workload more evenly.”

 

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