As he marked the two-month anniversary of his presidency, Joe Biden had not nominated anyone to either the federal bench or a U.S. Attorney’s Office, which distinguished him from his two most recent predecessors. One retired member of Indiana’s judiciary, however, is calling attention to the worrisome problem that beyond open positions, the state has no clearly defined process for identifying qualified Hoosiers to fill the vacancies.
Retired 7th Circuit Court of Appeals Judge John Tinder said he has been contacted in recent weeks by about six individuals who were seeking his advice on applying for the U.S. attorney vacancies in Indiana. He described them as having good qualifications, but they are frustrated because they do not know how to go about making an application.
“I’m sympathetic with that because I think the public would like to know and certainly potential candidates would like to know and the courts would like to know, how is this selection going to be made?” Tinder said. “If someone is interested, who do you talk to, where do you go? There really isn’t information about that out there that I can find.”
Indiana has vacancies in the top positions in both of Indiana’s U.S. attorney offices. Josh Minkler stepped down as U.S. Attorney for the Southern District of Indiana in November to join Barnes & Thornburg, and Thomas Kirsch resigned as U.S. Attorney for the Northern District of Indiana after he was confirmed to the 7th Circuit in December.
In addition, the Northern Indiana District Court also has an open seat. Judge Theresa Lazar Springmann, who was confirmed in March 2003, took senior status Jan. 23, 2021, creating one of the 61 current vacancies in the district courts.
The push to fill the federal judgeships is being accompanied by a call to nominate individuals of diverse races and cultural backgrounds.
Nicholas Huang, immediate past president of the Asian Pacific American Bar Association of Indiana, has drawn attention to what he calls the “diversity drought” in the Hoosier State’s judiciary. Since September 2012, more than a dozen judges have been nominated and confirmed to Indiana’s federal district courts, the 7th Circuit and the Indiana Supreme Court, but none has been a person of color.
APABA-IN, Huang said, has been encouraging certain Asian American attorneys in the Hoosier State that are seen as strong candidates for the judicial openings. Then the organization provides support and mentorship as those individuals position themselves to be considered for a judgeship.
“It makes sense for the pool of judiciary candidates to reflect the population of color in a proportionate manner,” Huang said. “(With) people from different backgrounds, different cultures, different life experiences, the legal system can better address the different causes of issues that perhaps the more homogeneous bench cannot.”
However, the dilemma that Tinder has encountered remains. Once an Indiana attorney makes the decision to seek to become either a federal judge or a U.S. attorney, the next step in the application process is not known.
In November, Republican Sens. Todd Young and Mike Braun announced they were taking applications for Springmann’s seat. Young’s office did not provide any information about whether candidates had been interviewed or if any names had been submitted to either the Trump or Biden administrations.
In response to a question about the need to reform the selection process, Young did not have any concerns about the process for nominating individuals for the federal bench or U.S. attorney positions.
“With respect to U.S. attorney nominations, Sen. Young has a positive working relationship with Congressmen (Andre) Carson and (Frank) Mrvan,” a spokesman said. “We have offered input and will evaluate the nominees put forth. President Biden will have his own process for filling judicial vacancies.”
Reps. Carson and Mrvan, both Democrats, did not respond to inquiries as to their involvement with the selection process.
Tinder is advocating for the creation of a nonpartisan selection committee as a way to bring structure to the process of soliciting applications and screening the candidates. With a clear process, he said, the senators would not be besieged by inquiries and could get input from a broader segment of the community rather than having to make the selections themselves. Also, more people from the bar would be able to enter the running for those federal positions.
“They don’t get drawn into the process,” Tinder said of the struggles individuals can face in trying to apply for a judgeship or U.S. attorney appointment. “They’re not in the right places at the right time because they don’t know where those places are.”
With the president being of the opposite party as Indiana’s two senators, the process is even murkier.
A 2013 report from the Congressional Research Service noted when the home state’s senators are of the same party as the administration, they will have a lead role in recommending candidates for the district courts. When neither senator shares a party affiliation with the White House, the task of identifying potential federal judges falls to the officials in the state who belong to president’s party.
“The lack of a process, I think, reduces the field from whom the candidates can be chosen,” Tinder said. “To have a broad diversity of potential candidates, I think you need to have a defined and disciplined process.”
The right time
On Capitol Hill, the House Judiciary Committee took a closer look at the composition of the judiciary during a March 25 hearing entitled, “The Importance of a Diverse Federal Judiciary.” The Leadership Conference on Civil and Human Rights wrote a letter to the committee leadership emphasizing the need to have a federal judiciary comprised of people of different races, genders, sexual orientation, religious beliefs and other traits.
“For a court to have legitimacy in the eyes of the people it is meant to serve, it must be both reflective of and responsive to all people,” the Leadership Conference wrote.
The process for getting judges who look like their community requires a purposeful effort, Huang said. Diversity must not only be made a priority but the momentum to be more inclusive must be sustained. Milestones should be set for achieving different diversity initiatives and leaders should be held accountable if those goals are not realized.
As an example that diversity efforts can be successful, Huang pointed to the recent appointment of three new African American judges to the Marion County judiciary. He credited the accomplishment to the efforts of an Indianapolis Bar Association task force that has kept the focus on having judges from an array of backgrounds and experiences.
The civil unrest last summer and the rise in attacks on Asian Americans has caused law schools, law firms, attorneys and judges to examine and look for ways to increase diversity in the legal profession. Huang sees this awareness as bringing about the right climate for putting more people of color into the judiciary.
“It couldn’t be any better, now is the right time,” Huang said. “If we cannot promote diversity on the bench at this particular time in history, I am concerned about our future.”•