Ralph Greenslade
Retired U.S. Supreme Court justice John Paul Stevens, Chief Judge Diane P. Wood of the 7th U.S. Circuit Court of Appeals (center) and Supreme Court Justice Elena Kagan discuss their experiences on the bench during a round-table discussion on Monday. The program was part of the three-day joint annual meeting of the 7th Circuit Bar Association and the 7th Circuit Judicial Conference at the Radisson Blu Aqua Hotel, 211 N. Columbus Drive, ending today.
Posted May 3, 2016 2:41 PM

Vacancies on bench cause concern

By Patricia Manson
Law Bulletin staff writer

John Paul Stevens doesn’t expect to see the highest court in the land up to full strength any time soon.

In Chicago on Monday night, the retired U.S. Supreme Court justice predicted the vacancy created by Antonin G. Scalia’s death will not be filled until after President Barack Obama leaves the White House.

“I wish there would be” a new justice on the court by early next year, Stevens said, but he doesn’t see that happening.

His successor, Elena Kagan, declined to discuss the matter.

Asked if she has talked to Merrick B. Garland since Obama nominated him to fill Scalia’s seat, Kagan simply said “sorry” as she rushed from a ballroom in the Radisson Blu Aqua Hotel on Columbus Drive.

Stevens and Kagan had just taken part in a discussion about their experiences on the high court.

Joining the two was Chief Judge Diane P. Wood of the 7th U.S. Circuit Court of Appeals.

The discussion was held during the joint annual meeting of the 7th Circuit Bar Association and the 7th Circuit Judicial Conference.

The gathering of judges and lawyers who work in the federal courts in Illinois, Indiana and Wisconsin began Sunday and ends today.

Earlier in the day, Wood had taken a wait-and-see attitude about the possibility the U.S. Senate will fill two vacancies on the Chicago-based 7th Circuit.

She conceded Garland seems to be the Senate’s primary focus.

And she conceded the Senate has not scheduled hearings for Obama’s nominees to the 7th Circuit.

But Wood refused to foreclose the possibility that the Senate will vote on those nominations rather than let them expire.

“You never know,” she said. “You never really know in today’s world.”

In January, Obama nominated Myra C. Selby of Ice, Miller LLP in Indianapolis and Donald K. Schott of Quarles & Brady LLP in Madison, Wis., to the 7th Circuit.

If confirmed, Selby would fill a vacancy created when John Daniel Tinder took senior status in February 2015. Tinder retired from the bench in October.

Schott would fill a vacancy created when Terence T. Evans took senior status in January 2010. Evans died the following year.

On Monday, Wood said Schott’s confirmation would bring more geographic balance to the court.

Wood noted Judge Diane S. Sykes has been the only jurist from Wisconsin serving on the 11-member 7th Circuit since Evans left.

Bringing two new judges on the 7th Circuit would also help lighten the load on the judges already serving, Wood said.

“At the moment, it’s OK,” she said. “We have a caseload we can manage.”

However, Wood said, “if we were to drop off any further, it would be a problem.”

Wood made her comments after delivering her State of the Circuit address.

The primary problem facing the Supreme Court is the prospect that it will return evenly divided votes on the cases it considers.

In March, Obama nominated Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to succeed Scalia.

But Republican leaders in the U.S. Senate have refused to hold hearings or a confirmation vote, contending Obama’s successor should choose Scalia’s replacement.

U.S. Sen. Mark S. Kirk of Illinois is one of the few Republicans to break with the GOP leadership.

He was the first Republican senator to meet with Garland. And Kirk, along with U.S. Sen. Susan Collins, R-Maine, has called for a confirmation vote on Garland.

At the 7th Circuit meeting, Wood and Michael T. Brody of Jenner & Block LLP gave welcoming remarks Monday morning.

Brody was succeeded today as president of the bar association by Brian W. Welch of Bingham, Greenebaum, Doll LLP in Indianapolis.

Wood’s remarks at the opening of the meeting were followed by a report from 7th Circuit Clerk Gino J. Agnello on the work of the courts in 2015.

Agnello said the number of appeals filed in federal appeals courts around the nation remained static last year.

The number of appeals fell 1 percent nationwide from 2014 to 2015, Agnello said, while they rose 2.1 percent in the 7th Circuit.

He said pro se parties filed 51 percent of the appeals nationwide and 58 percent in the 7th Circuit.

The 7th Circuit held oral argument in nearly 37.6 percent of the cases it decided last year, Agnello said, compared to the national average of 20.1 percent.

The court published opinions in 36.2 percent of the cases it decided last year, far above the national average of 12.8 percent, Agnello said.

Federal appeals courts issue unpublished orders — now called nonprecedential dispositive orders — in cases not decided by published opinion.

The full report, “The Judicial Business of the United States Courts of the 7th Circuit,” is available at ca7.uscourts.gov.

Michael Strautmanis of The Barack Obama Foundation spoke at a luncheon Monday.

Strautmanis, the foundation’s vice president of civic engagement, talked about the Obama Presidential Library in Chicago.

Two South Side sites — one in Washington Park and the other in Woodlawn — are under consideration, Stautmanis said.

He said he could not have envisioned a cultural center on the South Side designed to be “a catalyst for positive change” 10 years ago.

When he met Obama, Stautmanis confessed, “I thought he was an egghead.”

But then he saw Obama do a left-handed jump shot on the basketball court, Stautmanis said, and he realized the future president was not someone to be underestimated.

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