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Indiana federal court vacancies could remain for years

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Indiana’s two U.S. senators come from different parties, hold different political philosophies and have different ties to the current administration. But in order to fill the upcoming vacancies on the federal bench, the pair will be under pressure to work together and jointly recommend nominees to the president.

Having the support of both senators from a candidate’s home state has typically sent a strong message to the other members of the upper chamber on Capitol Hill. Still, this is an election year and judicial confirmations in the past have incited bitter partisan fights. Even if Sens. Dan Coats, a Republican, and Joe Donnelly, a Democrat, do agree on nominees, the seats may remain empty for some time.

The search for nominees started when two long-serving Hoosiers announced their intentions to step down: Judge John Tinder of the 7th Circuit Court of Appeals and Judge Sarah Evans Barker of the U.S. District Court, Southern District of Indiana.

Tinder has notified the federal court administration of his plans to retire in February 2015. Barker plans to take senior status June 30. She intends to continue handling a full caseload until her successor is nominated, at which time she will reduce her work to 80 percent.

Barker has acknowledged with the current ranker in the U.S. Senate that is making confirmations difficult, she could be working full time on the District Court for the a very long time.
 

Charles Geyh Geyh

At Indiana University Maurer School of Law, Professor Charles Geyh found reason to believe the Indiana judicial slots could stay vacant for at least two years.

With two years remaining in President Barack Obama’s term and no Republican currently standing out as a frontrunner to win the White House in 2016, Geyh said politics will likely continue to dominate the confirmation process. Increasingly over the past 20 to 30 years, the approval of new judges has become politicized.

He predicted a 50-50 chance that Barker’s seat will be filled by the end of the current administration. Geyh speculated chances are even less for filling Tinder’s judicial post before the president’s term expires.

The wildcard is that Indiana nominees will be considered after the Senate majority employed the so-called nuclear option. In November 2013, Democrats eliminated filibusters by changing the Senate rules so that judicial nominees will only need a simple majority of 51 votes, as opposed to a super majority of 60 votes, to be confirmed.

“It’s not clear to me what the effect of the filibuster change will be on the process and whether it means you could push someone through over the objections of the minority party,” Geyh said.

Qualifications of nominees

One possible outcome of the filibuster change could be more liberal nominees.


scott-ryan.jpg Scott

Ryan Scott, associate professor at IU Maurer School of Law, said Obama might become more aggressive in pushing judicial candidates from the left. The president is under pressure from progressives, Scott said, to nominate liberal judges and practitioners who they believe will reliably vote for liberal positions from the bench.

However, even getting 51 votes is difficult. Scott noted centrist Democrats may balk at supporting liberal nominees and since the balance of power in the Senate may shift after the 2014 election, less controversial nominees may remain the attractive choice.

In separate statements, Coats and Donnelly indicated experience will matter more than political leanings when selecting a nominee for the U.S. District Court position.

“I will be looking for someone who has proven herself or himself as an outstanding member of Indiana’s legal community,” Donnelly said. “Further, the candidate must be someone with the right judicial temperament – one who treats all parties before the court with respect and someone who will decide cases in a fair and impartial manner.”

Potential nominees will be vetted by the White House, the Senate and the American Bar Association.

Historically, individuals with judicial experience and a reputation for moderation tend to have the most success at being confirmed, especially for the openings on the Circuit courts. The confirmation for District courts tends to be less contentious so nominees can be not only judges but also practitioners and law school professors.

Barker was U.S. Attorney for the Southern District of Indiana when she was nominated for the federal bench.

The process of selecting a new judge can force nominees to put their careers on hold for years. Geyh described the nomination-to-confirmation period as intense, uncertain and one in which the opposition will try to dig up all kinds of dirt.

“The pool is limited to people who are willing to put up with the awful business of the nomination process,” he said.

Coats indicated a willingness to be a part of the nomination process, noting he takes seriously his responsibility to provide advice and consent to the president on judicial nominees. He echoed Donnelly on the qualifications the individual must have to gain his approval.

“Qualified candidates must have a profound respect for the law, unquestionable character and a reputation built on fairness and integrity,” Coats said.

Senate battles

The approval of Indiana’s Judge David Hamilton for the 7th Circuit Court of Appeals underscores how nasty the confirmation process can be. Although he had the support of then Indiana Sens. Evan Bayh and Richard Lugar, conservatives protested Hamilton’s nomination because of rulings he made as a judge for the U.S. District Court, Southern District of Indiana.


lugar Lugar

The Senate Republicans started to filibuster but Democrats were able to muster the votes to end the debate, opening the door for Hamilton to be confirmed.

Changing the filibuster rule was promoted as a way to speed up the confirmation process and work toward filling the current 86 vacancies in the federal judiciary. However, Senate Majority Leader Harry Reid’s former colleague, Lugar, does not think the rule should have been changed.

“I understand his impatience, his exasperation and I understand the delay (caused by) all of those vacancies,” Lugar said of the Nevada senator. But the move damaged relationships and made Republicans angry. “It is a blow.”

During his tenure in the Senate, Lugar did not oppose any judicial candidate. He said he gave deference to the nominating senators, believing they had done their due diligence and selected a qualified individual.

The congenial atmosphere has since evaporated in the Senate. Republicans and Democrats have opposed judicial nominees and have used the filibuster to block confirmation votes.

Scott called Reid’s decision to change the filibuster rule a “positive development” and a “step in the right direction.” He believes the rule revision will enable federal bench vacancies to be filled since the minority will have less ability to obstruct the nominees.

Lugar, as well, noted the number of empty seats in the federal judiciary and described the current situation as “severe.” While the cases continue to pile up, the shortage on the bench means fewer cases will be adjudicated and justice will be denied, he said.•

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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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