Even before a confirmation hearing has been gaveled to order or a floor vote scheduled, one nominee to an Indiana vacancy on the federal bench is facing opposition as a home state senator renews his call for a nominating commission.
President Barack Obama announced Jan. 12 the nominations of Winfield Ong, chief of the criminal division in the U.S. Attorney’s Office, as a judge for the U.S. District Court for the Southern District of Indiana, and Myra Selby, former justice of the Indiana Supreme Court, to the 7th Circuit Court of Appeals.
Ong was selected to fill the opening created on the court when Judge Sarah Evans Barker took senior status June 30, 2014. Selby was tapped for the vacancy that occurred when Judge John Tinder retired in July 2015.
Both Ong and Selby declined to be interviewed for this article.
Sen. Joe Donnelly described both nominees as well-qualified candidates and urged his colleagues in the U.S. Senate to quickly consider their nominations.
However, getting the Hoosiers confirmed this year might be an impossible task. Historically, the Senate halts the process during a president’s last year in office, especially when the majority in the upper chamber is of a different party.
The rancor between the Senate and Obama is especially strong and nominations have been stalled since Republicans assumed power. Clogging the process even more is the question of whether Indiana Republican Sen. Dan Coats is going to support Selby.
Coats said the process of selecting a nominee for the 7th Circuit should be turned over to a commission because the appellate court has not been declared as having a judicial emergency.
“The citizens of Indiana will be best served by a nomination process that is taken completely out of politics,” Coats said in a statement. “We still have time to establish an equitable process for the remainder of this Congress. Myra Selby’s nomination should be considered by an Indiana Federal Nominating Commission.”
Coats called for the formation of a nominating commission in May 2015, saying the process would ensure that qualified individuals are put forward as nominees. He reiterated assembling such a commission would not be unprecedented since former Sens. Richard Lugar and Dan Quayle formed a similar body to recruit, interview and make recommendations for federal appointments.
Donnelly’s office indicated it did not want to throw another step into the confirmation process.
“Now that nominees for two Indiana-related vacancies have been submitted to the Senate, Sen. Donnelly is focused on working with Sen. Coats and his other Senate colleagues to see these nominees confirmed,” said Sarah Rothschild, Donnelly’s spokeswoman.
What Coats will ultimately do is open to speculation.
To Charles Geyh, Indiana University Maurer School of Law professor, Coats’ push for a commission is code that he will not support Selby. But Carl Tobias, professor at University of Richmond School of Law, said the Indiana Republican will be under heavy pressure to provide his backing mainly because withholding support will just look bad. Tobias described Selby as “a very qualified African-American woman,” and said obstructing her confirmation would not be a good way for Coats to retire.
Coats announced last year he would not be running for re-election in 2016.
Time running out
To date, the current Congress has confirmed 13 federal judges with the last one in November 2015, according to the Administrative Office of the U.S. Courts. There are now 77 vacancies with 35 nominees pending.
That kind of math does not bode well for Ong and Selby. Their nominations must receive approval from the Senate Judiciary Committee in order to advance to a vote by the full Senate. But because the senators are following the rules of regular order, the Indiana nominees will not be considered until all the others standing in line in front of them complete the confirmation process.
“If I’m Obama, I’m not holding my breath on this one,” Geyh said, noting he does not expect Congress will have time before the end of Obama’s term to vote on Ong and Selby.
Tobias is a bit more optimistic. While he concedes the window for being confirmed is closing, he believes enough time is still available.
Of the two candidates, Ong has the better chance of being confirmed. Nominations for the district courts are not as politically charged as for the higher courts. Usually the Senate will focus on whether the candidate is competent and can keep cases moving through the docket.
Coats said he is supporting Ong because of the judicial emergency in the Southern District of Indiana.
The federal judiciary designates an emergency based on the number of case filings per judge and the length of time the vacancy has been open. The opening has been pending for nearly 600 days as of Indiana Lawyer deadline, and the weighted filing per judgeship is 658, well above the standard of 430 recommended by the Judicial Conference.
Even with the support of both Indiana senators, Selby still would have a more difficult journey to confirmation. Nominees for the appellate level undergo more intense scrutiny because the federal circuit courts reside over a broader geographical area and the opinions can have greater consequences. With more seemingly at stake, senators often take a close look at the ideology and political leanings of appellate bench candidates.
Tobias maintained even if Coats is successful in getting a nomination commission convened, there still would be time to approve Selby. The Richmond professor said a commission could be put together very quickly and it could do its work of reviewing candidates simultaneously as the Senate proceeds with Selby’s nomination.
“It ain’t rocket science,” Tobias said. “I can do some little commission in my state in five minutes. Get on the phone and get it done.”
Coats’ plan likely would require more effort. He envisions both Indiana senators working together to develop a structure for the commission and then each appointing individuals to serve. A charter would set out the rules of the commission’s operations including how many recommendations it would return to the senators.
Selby was one of two candidates the president nominated for the 7th Circuit. The other, Donald Schott, would fill the Wisconsin seat. A 1980 graduate of Harvard Law School, Schott is a partner in the Madison, Wisconsin, office of Quarles & Brady LLP.
Donnelly called Selby an “outstanding candidate” and “accomplished attorney.”
“Throughout her career, she has sought to ensure fairness in our courts and among our legal services providers and related organizations,” he said. “She would be a strong addition to the 7th Circuit bench.”
The Indiana Democrat and his Republican colleague were unified in their praise of Ong.
Coats said the district court demands a “sharp legal mind and a thoughtful, fair temperament. After reviewing Winfield Ong’s record and background and meeting with him personally, I believe he is qualified for his position.”
Donnelly said Ong “has an impressive range of experience in federal practice” and “has demonstrated the legal acumen and temperament necessary to serve Hoosiers well on the federal bench.”•