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Barnes & Thornburg lawyers filling Indiana federal judiciary

July 25, 2018
leichty-damon-mug Leichty

When the White House nominated Hoosier Damon Leichty to a federal district judgeship, it was the second time the Trump Administration has chosen an attorney working at Barnes & Thornburg LLP in Indiana to fill a judicial vacancy.

Leichty, a commercial litigator in the firm’s South Bend office, was nominated to replace Senior Judge Robert L. Miller, Jr., on the U.S. District Court for the Northern District of Indiana. James Sweeney II from the Indianapolis office is awaiting a confirmation vote to fill the seat formerly held by Senior Judge Sarah Evans Barker on the U.S. District Court of the Southern District of Indiana.

“These are two fantastic lawyers and people,” said their Barnes colleague John Maley. “It’s an honor that their excellence is recognized for these important positions.”

Both nominees have strong pedigrees for the federal bench, including experience as litigators and as clerks in the federal courts. Leichty actually clerked for Miller from 2001 to 2003, while Sweeney clerked for retired Southern Indiana District Judge John Tinder from 1996 to 1997 and for the retired 6th Circuit Court of Appeals Judge James Ryan from 1997 to 1998.

Maley pointed out the nominees are following a well-traveled path of stepping from clerkships into the judiciary. Within the Southern Indiana District, several magistrate judges all clerked for federal judges. Tim Baker clerked for the late Senior Judge Larry McKinney, Debra McVicker Lynch for Barker and Mark Dinsmore for Tinder.

In addition to Leichty and Sweeney, another Barnes alumna has been tapped for the district court. Haller & Colvin’s Holly Brady, who was a member of the Barnes team for a time as an associate, is in line to be confirmed by the Senate to replace Senior Judge Joseph Van Bokkelen of the Northern Indiana District Court.

Asked about the Barnes culture that is cultivating federal judges, Philip Faccenda Jr., managing partner of Barnes’ South Bend office, pointed to the firm’s focus on recruiting “bright, talented lawyers.” It looks for individuals who will make excellent lawyers, Faccenda said.

Barnes & Thornburg started in Indiana and now has more than 600 legal professionals across 14 offices scattered around the United States. It is among the 100 largest law firms in the country.

Despite the big footprint, Barnes found Leichty close to home. He grew up a short distance from South Bend in Argos and graduated from Indiana University Maurer School of Law. Faccenda said while he is disappointed to potentially lose Leichty, he believes his colleague will be a good federal judge.

“He’s a very bright, very capable lawyer, and he’s a top-notch ethical person,” Faccenda said. “It’s never easy to take over for someone like Judge Miller. If there is anybody who’s ready for that job, it’s Damon.”

Leichty and Sweeney will have big shoes to fill if they are confirmed to the federal bench. They will also, Maley said, have to juggle a docket with a full load of cases from criminal matters to civil issues including taxes, patents, contracts and product liability. A majority of the complaints filed in federal court are handled at a district level, with the judges routinely tackling questions of first impression.

“It’s a very challenging position that requires the best and brightest,” Maley said. “It’s heavy lifting.”

Although they will be following Miller and Barker, who are both well-respected judges, Maley believes his colleagues will craft their own legacies. He said the first motion they rule on, the first hearing they hold, the first trial they preside over, they’ll work extra hard and they’ll have the legal skills to draw upon in their decision-making.

Trend toward sameness

Leichty was nominated for the last open seat in the Indiana federal judiciary.

In the Southern District, aside from Sweeney, Feagre Baker Daniels partner James Patrick Hanlon is waiting for a confirmation vote to replace Judge William Lawrence, who took senior status July 1, 2018. Brady and Leichty will fill seats in the Northern Indiana District. Also, Notre Dame Law School professor Amy Coney Barrett has been confirmed to fill the Indiana seat on the 7th Circuit Court of Appeals.

The Trump Administration has nominated scores of attorneys and judges to the district and circuit courts. According to an article published in the Boston Globe July 21, the president has appointed 44 judges and has another 88 nominees pending before the Senate. The White House announced Leichty’s selection as part of its “Sixteenth Wave of Judicial Nominees”

However, the complete roster of Trump judicial nominees has been criticized for lacking in gender and racial diversity. A majority of the nominees for judicial seats across the country have been white males.

A study by the Pew Research Center found that as of March 20, only 10 percent of the individuals appointed to the federal judiciary were racial or ethnic minorities. Also, only 21 percent of the judges confirmed are women.

This lags behind the Obama Administration, which appointed a record 36 percent nonwhite and 42 percent women judges.

The Pew analysis found that the federal courts “remain overwhelmingly white and male.” Among the 1,304 judges currently serving, just 20 percent are minorities and 27 percent are females.

Glenn Sugameli, senior attorney and founder of the Judging the Environment project on federal judicial nominations and related issues, also pointed out a lack of experiential diversity among the administration’s nominees. Many are coming from big law firms and have done corporate defense work. Relatively few have come from the public interest sector, and the plaintiffs bar is vastly underrepresented.

This, Sugameli said, creates a narrowness of perspectives. Judges, he said, decide what is reasonable and what is negligent based on their life experiences, not on the information in a law book.

Experiential diversity is incredibly important to ensure the law courts are fair and independent, he said.•

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