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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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