With the U.S. Senate adjourned until after the presidential election and the chances for judicial confirmations dwindling, an article just published by a Virginia law professor calls for former Indiana Supreme Court Justice Myra Selby to be appointed to the 7th Circuit Court of Appeals.
University of Richmond School of Law professor Carl Tobias described Selby as an “exceptional consensus nominee” who has “resolved diverse, pressing matters with nuanced solutions,” in his article, “Confirm Myra Selby for the Seventh Circuit.” The piece appears in volume 92 of the Indiana Law Journal published by the Indiana University Maurer School of Law.
Selby was nominated by President Barack Obama in January 2016 to fill Indiana’s 7th Circuit seat which has been vacant since Judge John Tinder retired in February 2015. Since then, her nomination has stalled as Senate Republicans have slammed the brakes on judicial confirmation process.
The Senate Judiciary Committee, chaired by Iowa Republican Sen. Chuck Grassley, has not held a hearing to elicit her testimony and consider her qualifications. Primarily the delay is traced to Indiana Republican Sen. Dan Coats not supporting her candidacy. Instead, Coats has advocated for the creation of an Indiana Federal Nominating Commissions to review and recommend individuals for the 7th Circuit vacancy.
Glenn Sugameli, attorney and founder of the group Judging the Environment, believes the nominees for the circuit courts who have passed through the committee could still get a vote by the full Senate before the end of the year.
However, floor votes for circuit nominees have slowed to a trickle in the upper chamber. In 2015, the Senate confirmed only Kara Farnandez Stoll for the Federal Circuit and thus far in 2016, only L. Felipe Restrepo has been elevated to the 3rd Circuit.
Tobias, in his article, maintains there is still time to get Selby through. He writes if Indiana Democratic Sen. Joe Donnelly can persuade Coats to support the former Indiana justice, the committee, working quickly, could get the nomination to the Senate floor. If Coats does not reconsider, a review panel, like the Indiana Republican wants, could possibly be established and still complete its task with enough time for the Senate to vote.
“Many reasons demonstrate why Selby ought to have a prompt floor debate and ballot,” Tobias writes. “The Majority Leader (Sen. Mitch McConnell, R-Kentucky) should implement the regular order that he constantly praises and honor distinctly relevant 2008 precedent. If McConnell, nonetheless, refuses to arrange Selby’s debate and vote, the nominee’s proponents must aggressively pursue cloture.”
In September, Marion County Bar Association president Roxana Bell and board member Noell Allen traveled to Washington, D.C., to take part in a press conference on the steps of the U.S. Supreme Court. The event was sponsored by the We Need Nine campaign, which is pushing to fill the vacancy on the Supreme Court left by the sudden death of Justice Anton Scalia.
Bell and Allen drew attention to the growing number of empty seats across the federal bench. Currently, the judiciary has 98 total vacancies and 59 pending nominees. Returning to Indianapolis, Allen noted that Selby has been waiting longer than U.S. Supreme Court nominee Merrick Garland for a confirmation vote.
In addition, Allen questioned the reason for the delay in considering Selby. Coats has said the reason to convene a review commission is because the 7th Circuit vacancy has not been deemed a judicial emergency.
“Why are we waiting for an emergency to happen,” Allen asked, noting the seat remains open and Selby is ready, willing and able to serve.
Currently, three nominees for the circuit courts are awaiting floor votes including Donald Schott, who was nominated for the Wisconsin vacancy on the 7th Circuit. The other candidates are Jennifer Klemetsrud Puhl for the 8th Circuit, and Lucy Koh for the 9th Circuit.
Schott was nominated for the circuit court on the same day as Selby. Both Wisconsin senators, Republican Ron Johnson and Democrat Tammy Baldwin, support Schott. The judiciary committee approved his nomination in a 13-7 bipartisan vote June 16, 2016.
Sugameli said Schott could be a floor vote after the presidential election. But he is more confident that Winfield Ong will be confirmed for the U.S. District Court for the Southern District of Indiana. Ong was nominated in January 2016 to fill the seat of Judge Sarah Evans Barker, who took senior status in June 2014. The judiciary committee unanimously approved Ong’s nomination in June 2016.
Coats is supporting Ong’s nomination because the Southern District vacancy has been labeled a judicial emergency.
“I’m still optimistic,” Sugameli said of the potential for judicial nominees to be confirmed. “There is such a need to fill long-term vacancies, many of which have been declared judicial emergencies, and so many home state Republican senators pushing for (the nominees), I think there will be a critical mass to push for action.”