ILNews

Indiana federal court vacancies could remain for years

Back to TopCommentsE-mailPrintBookmark and Share

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.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

ADVERTISEMENT