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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. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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