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Judicial nominees on the road to confirmation

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When he was being considered for a seat on the federal appellate bench, Judge John D. Tinder recalled getting a phone call about an ongoing case just before he was set to appear before senators in Washington, D.C.

Someone on the other end of the phone asked about a cross-burning sentencing that had received some media attention in the past, and how a similar case was set for trial on his docket in the Southern District of Indiana, Indianapolis Division. The judge recalled being told that topic might become a controversial point in his upcoming confirmation hearing because of hate crime legislation Congress was exploring at the time.

But when Judge Tinder went through his confirmation hearing in 2007, no one questioned him about the case and the issue didn't come up. The same phenomenon happened two decades earlier when he was first elevated from the U.S. Attorney post to the District Court bench, and controversial cases at the time turned out to not have an impact on his pending confirmation.

It's all part of the nomination game, when those selected for judicial seats or top attorney roles find themselves battling the political process while carrying on their current jobs as lawyers or judges.

"It can be awkward for a nominee in their daily work because you're sort of a moving target for those in the legislative branch who might weigh in on those cases you're handling," Judge Tinder said in hindsight. "You have to keep your head down and work, and keep your docket moving regardless of what controversy may come up."

That's what Indiana's three current judge nominees face as they go through the confirmation process. Marion Superior Judge Tanya Walton Pratt and U.S. Magistrate Judge Jane Magnus-Stinson were chosen in January for Southern District of Indiana judgeships, while banking attorney Jon DeGuilio has been chosen for the Northern District of Indiana.

The trio of judicial nominees wasn't on the Senate's vote calendar at deadline for this story, though on April 22 the Senate did confirm by unanimous consent David Capp as U.S. Attorney for the Northern District. Capp was nominated last year to succeed Joseph Van Bokkelen, who took the bench in July 2007.

Regardless of those pending nomination statuses, they all face a politically lined maze within the legal system that all must wind their way through when confirmation comes calling.

Nominees are often cautioned about public statements and told to lay low until their confirmations are complete, but that doesn't mean the nominees' existing jobs can come to a halt. Those daily duties go on mostly as usual for sitting judges and magistrates who must still hear and rule on cases and work with counsel, while the practicing attorneys who've been nominated have to keep up their own client relations and caseloads.

It's not always an easy task, particularly if partisan delays hold up the nominations.

Though Indiana judicial nominees successfully confirmed in the past three decades have faced an average waiting time of 3.4 months between initial selection and final approval, partisan gridlock has stalled some more than others and caused those within the legal community to frown on the entire process. Meanwhile, national data shows the overall process is changing the makeup of District Courts throughout the country as fewer private practice attorneys are vying for these public service judicial posts.

The American Judicature Society reports that federal judges' vocational backgrounds since the Dwight D. Eisenhower administration in 1953 have steadily declined in the number of judges coming from private practice - three quarters of nominees in 1953 compared to the one-third during George W. Bush's administration. By comparison, the proportion of sitting judges appointed to appellate courts in the same period has stayed around the 50 percent mark, an AJS article says.

Analysts say that trend reflects a mentality that public-sector appointees make for a more "professional" judiciary who better understand the umpire-like role and aren't as close to their attorney advocacy roots. Others point to private practitioners as necessary parts of the judiciary's makeup, representing some of the bar leaders with more diverse views.

Of the Hoosier jurists who now hold either a District or Circuit judgeship, only four came to the bench from private practice - Judge David F. Hamilton is the only active judge, while Circuit Judge Daniel Manion, and Judges Rudy Lozano and William C. Lee in the Northern District have all taken senior status. The others either rose from the ranks of magistrate judge, federal prosecutor, or state judge.

Two of the three pending judicial nominees have judicial experience; DeGuilio is the only one currently working in private practice, though he served as U.S. Attorney for six years in the 1990s.

"I'd say the most dangerous effect of delays and uncertainties in the process would be to discourage somebody in private practice," said Judge Hamilton from Indianapolis, who was recently elevated from the Southern District to the 7th Circuit. "A public announcement that a person is on the way to an appointment can really slow down the flow of new business. Some of that is inevitable, but with one that drags out for months or even more than a year, it can be corrosive and discourage otherwise interested people from the private sector."

When he was nominated for the federal bench in June 1994, Hamilton worked for Indianapolis-based firm Barnes & Thornburg. His nomination process lasted about four months and during that time he recalls it was difficult to bring in new clients with the looming change.

"When you're nominated you have to do your regular job, but it was difficult to go out and convince clients they needed my services when I might not be there a few months from then," he said. "At a big firm, it might be easier to cushion that effect than someone at a smaller firm."

Though it took twice as long for his confirmation to play out for the appellate bench and it was much more controversial, Judge Hamilton said he was almost better shielded from the impacts during the 2009 process. He was in a more ideal position to tolerate some of the delays because of the fact that he as a judge he had to rule on cases regardless.

In Hammond, Judge Van Bokkelen reflected on his six-month nomination process that brought him up from being U.S. Attorney for the northern part of the state. During that time, he did try to change his visibility level in his running of the federal prosecutor's office. Instead of him making public statements about cases, Van Bokkelen said his second-in-command - now-confirmed successor Capp - became the face for that office.

"Clearly, it changes a little how you purport yourself and it does affect you," he said. "I became less visible than I was before."

Overall, Judge Sarah Evans Barker said the nuances of how nominees might be impacted shows a bigger concern about the confirmation process. Since she was first nominated for the federal bench in 1984, the judge has watched the process become more political and delay-burdened - dragging on much longer than the one month it took for her to go from nomination to confirmation.

"I had a noncontroversial appearance before the Senate and my nomination went click click click, but it also deserves to be said that it was a different era and this was a District Court judgeship," she said.

Now, the path is a more complicated process that Judge Barker said has broader implications on judicial independence and makes it more difficult for courts to function without a full roster of jurists on board.

After she was nominated to the District Court, she didn't change how she prosecuted cases as U.S. Attorney and doesn't think that any of her Hoosier colleagues faced those kinds of decisions, but Judge Barker realizes the temptation exists and could present concerns to those who don't fully understand how the legal system works.

"The length of the process is unduly long, and consequences are substantial because courts have to be able to do their essential function," she said. "When a person is drawn into that nomination vortex, you might not want to create controversies that could undermine your confirmation process or drag it on. That politicization of the process is a sadness, a weakness. Is there a tendency during that delicate phase to hold back or maybe put a decision on the backburner? That could be a likely technique, and there might be a tendency to think about that."

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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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