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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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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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