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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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