Senate prepares to vote on Kirsch nomination to 7th Circuit

Thomas Kirsch, U.S. Attorney for the Northern District of Indiana, will likely get one step closer to joining the 7th Circuit Court of Appeals today with the U.S. Senate scheduled to vote on the cloture motion for his nomination at 5:30 p.m.

The vote on his confirmation by the full Senate could then come Tuesday. With Republicans in the majority of the upper chamber, Kirsch is expected to be confirmed.

“I don’t think any Republican is going to step out of line on this one,” said Carl Tobias, professor at the University of Richmond School of Law and expert on federal judicial selection. “I think he’ll get (confirmed) but it might be a party-line vote.”

Kirsch’s nomination has been controversial because his name was sent to the Senate after President Donald Trump lost the November 2020 election. Democrats on the Senate Judiciary Committee have decried the continued consideration of judicial nominees during a lame duck presidency.

Sen. Dick Durbin, D-Illinois, described his Republican colleagues as moving at “breakneck speed” during the past four years to confirm Trump’s nominees to the bench. Even when some of the candidates for the federal judiciary had questionable qualifications, the majority has kept the “nominations assembly line rolling,” Durbin said, and is still moving forward with Trump nominees despite President-elect Joe Biden and his administration starting next month.

Durbin said Kirsch is “a qualified person” but he and others were constrained to vote against his nomination because of the concerns about considering judicial picks sent by an outgoing president.

“It’s time to stop moving Trump nominees through this committee,” Durbin said when the Judiciary Committee voted along party lines to forward Kirsch’s nomination to the Senate floor. “Donald Trump has lost his mandate to fill these vacancies.”

Trump announced his intention Oct. 21 to nominate Kirsch to fill the Indiana vacancy on the 7th Circuit that became available when Amy Coney Barrett was elevated to the U.S. Supreme Court on Oct. 26. The president sent Kirsch’s nomination to the Senate Nov. 16.

If the Senate confirms, Kirsch will be in very rare company. Few circuit judges have been nominated and confirmed during a lame duck presidency, according to Tobias.

The most recent was Justice Stephen Breyer being nominated to the 1st Circuit Court of Appeals after President Jimmy Carter lost the 1980 election. However, Tobias said, that situation is distinct from the current circumstances because Democrats and Republicans reached a compromise to confirm Breyer while Kirsch will probably ascend to the appellate court without a single vote from the minority party.

Kirsch is not the only Trump judicial nominee to be confirmed on a party-line vote, but that so many Trump selections have been sent to the bench with only Republican support is troubling, Tobias said.

“It’s not good for the Senate and it’s not good for the judges either because the perception is they are political or partisan,” the law professor said.

Kirsch, who has been rated as well-qualified by the American Bar Association, might have enjoyed some bipartisan support. But his hearing before the Judiciary Committee appears to have changed at least one Democrat’s mind.

Sen. Sheldon Whitehouse, D-Rhode Island, had pressed Kirsch on his approach to originalism. The nominee said he would apply the law, in part, by looking at the original meaning of the words in the text. Whitehouse questioned how looking at what the words of the 14th Amendment meant at the time they were written would have led the U.S. Supreme Court to overturn the separate but equal doctrine in Brown v. Board of Education.

“I was inclined to vote for him at the beginning of the hearing and then he managed to bumble into such a tangle of trying to sort out how he viewed precedent that he really couldn’t talk his way out of that,” Whitehouse said of Kirsch’s efforts to answer the Brown inquiry. “He just got completely flummoxed and it took the skills of our chairman to step in and, what trial lawyers would call, rehabilitate the witness.

“… When it takes that kind of help for somebody who wants to be on a circuit court of appeals, that’s pretty much the end of it for me,” Whitehouse said.

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