While Indiana’s two nominees to the federal judiciary have a chance to get a confirmation vote before Inauguration Day, the possibility is extremely slim. The pair likely will find a place in the history books rather than on the bench.
Winfield Ong and Myra Selby were tapped by President Barack Obama in January to fill vacancies on the U.S. District Court for the Southern District of Indiana and the 7th Circuit Court of Appeals, respectively.
Since then, Ong has been unanimously approved on a voice vote by the Senate Judiciary Committee and is awaiting a vote by the full Senate. Selby has not even received a committee hearing because Republican Sen. Dan Coats is withholding his support of her nomination, saying his decision is due to her spot not being considered a judicial emergency.
Currently, 44 nominees for the district courts, seven for the circuit courts and Merrick Garland for the Supreme Court of the United States are pending in the upper chamber. However, the Republican majority has been slow to debate and vote on federal court nominees and earlier this year stopped the process completely, citing tradition of allowing the incoming president to offer his own nominees.
“I am disappointed that the Senate does not plan to hold any more votes this year,” Indiana Democratic Sen. Joe Donnelly said. “I strongly supported both Winfield Ong and Myra Selby and pushed the Senate majority to allow them to receive fair and timely consideration. Part of our job as senators is to consider judicial nominations, but ultimately the Republican leadership chose not to hold hearings and votes on many nominees for the lower courts in addition to refusing to consider the nomination of Judge Garland to fill the Supreme Court vacancy.”
Coats’ office responded to a request for comment by noting the Senate has concluded its business for the year and will not consider any further judicial nominations.
Still, Obama’s judicial candidates could get floor votes when the 115th Congress convenes Jan. 3, 2017. The president could re-nominate these individuals and the new Senate could give them consideration prior to the Jan. 20 inauguration.
University of Richmond School of Law professor Carl Tobias described that scenario as a long shot. However, in a column published Dec. 16 in The Hill, he made the argument for Obama to re-nominate and the Senate to confirm Ong, calling the assistant U.S. attorney in the Southern District of Indiana an experienced and strong consensus nominee.
More likely, the new Senate will wait for President-elect Donald Trump to take office and offer his own nominees. Ong, who gained the bipartisan support of both Donnelly and Coats, could then be nominated by the new president if incoming Indiana Republican Sen. Todd Young approves the pick.
A Republican’s enthusiastic and active support could sway the Senate to consider a hold-over nominee, but Indiana University Maurer School of Law professor Charles Geyh said in the current atmosphere, senators do not seem to “give a fig about any Obama nominees.”
Geyh sees what happens to the lower court vacancies as hinging on the battle to fill the seat on the Supreme Court. If that nominee is more of a moderate, such as Iowa Supreme Court Justice Edward Mansfield, the Democrats might be willing to curb their opposition. This could then set a new tone and lead to less acrimonious fights to fill the district and circuit court spots.
Still, the minority party might not be in the mood to be cooperative.
“The Republicans have not done themselves any favors by stiffing Garland,” Geyh said.
Attorney Glenn Sugameli asserts there is no reason for the Senate to delay confirmations for the nominees waiting for a floor vote. These individuals have already cleared many of the hurdles to a final vote, including being vetted by the FBI and the American Bar Association and getting the approval of the judiciary committee.
Sugameli is the founder of Judging the Environment, a nonprofit judicial watchdog organization.
He does not see any reason that Donnelly and Young could not push forward Ong’s nomination. Also, he said, it is conceivable that Young could support Selby, a partner at Ice Miller LLP in Indianapolis, for the Chicago-based court.
Overall, the federal courts have 105 vacancies with 38 having been designated a judicial emergency, including the vacancy in the District Court for the Southern District of Indiana, according to the Administrative Office of the U.S. Courts. The empty seats coupled with some Republican senators, namely from Idaho and Texas, clamoring for their nominees to be confirmed, could prompt the Senate could act.
“I think there’s going to be pressure on the new Senate to show they can do their job,” Sugameli said, noting “a pretty easy” accomplishment would be to confirm the pending nominees.
If the Senate chooses to let Trump offer a new slate of nominees, the seats will likely remain vacant through much of 2017. How quickly the new list of judicial candidates comes depends on how quickly the new administration can get staff in place and collect recommendations for the federal bench.
But the Senate’s first priority for the federal judiciary will be the Supreme Court vacancy. Any nominees for the lower courts might not come until at least September and, Tobias noted, by then the number of vacancies likely will have increased.•