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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana seat on the 7th Circuit Court of Appeals left vacant by the sudden death of Judge Michael Kanne gives the Biden administration the opportunity to flip the seat. But with Republicans largely expected to win back the Senate in November, the time needed to select, nominate and confirm a judge by the end of this year is rapidly slipping away.
Not only could President Joe Biden potentially miss the chance to install another circuit court judge, he could also lose the chance to flip the seat from one being held by a Republican-nominated judge to a Democrat-nominated judge. Biden already flipped one seat on the 7th Circuit, successfully nominating Judge Candace Jackson-Akiwumi to replace Senior Judge Joel Flaum, who had been nominated by President Ronald Reagan in 1983.
Yet looking at the calendar and noting Senators are due to recess for much of August, legal scholars are increasingly doubtful the president will be able to get another judge confirmed to the Chicago-based appellate court.
John P. Collins Jr., visiting associate professor at George Washington University Law School, speculated Biden might be choosing nominees for the judgeships where his administration can have the most impact.
“With the limited amount of time they have left, they might be looking and seeing which of these seats need to take priority, because it will preserve a majority on a court or it will flip a court,” Collins said. “… So it may just be one that (the administration) says, ‘If you keep the Senate, we’ll turn to it next year, but otherwise, it’s going to be one of those ones that Republicans just hold open.’”
According to the Administrative Office of the U.S. Courts, there are currently 77 vacancies on the federal courts, and 30 nominees are pending.
Indiana has a handful of those vacancies, including the Northern and Southern Indiana District Court seats held by Judge Theresa Springmann and Judge Richard Young, respectively, who have taken or will take senior status this year.
Other than tapping Magistrate Judge Doris Pryor of the Southern Indiana District Court to replace 7th Circuit Judge David Hamilton, who plans to take senior status, the White House has not announced any other nominees to fill Hoosier judicial seats.
University of Richmond School of Law professor Carl Tobias noted the nominee for Kanne’s seat does not have to come from Indiana. The president has the option of nominating someone from anywhere in the 7th Circuit’s geographical footprint.
“I think maybe the Indiana senators have to think about that,” Tobias said. “I don’t think (Senate Judiciary Committee Chair Dick) Durbin would do that, it’s just not his style. But … (Biden’s) got plenty of material in Illinois, lots of judges on the Northern District in Chicago who are very good and very talented. There’s a whole slew of Obama people who would be perfect, so the senators from Indiana have to be careful. They don’t want to lose that seat.”
Indiana’s senators, Todd Young and Mike Braun, both Republicans, did work with the White House in selecting Pryor to fill Hamilton’s seat. Pryor acknowledged and thanked them for their support at her confirmation hearing on July 13.
Tobias speculated the Biden administration will nominate someone to fill Kanne’s seat given the number of picks the White House has been announcing recently. Because of the time the background checks can eat up, the professor said the White House would probably select someone who has already cleared the hurdles, such as a sitting district court judge or magistrate judge, or one of the U.S. attorneys in Indiana.
Republicans might be even more reluctant to confirm a Biden pick to Kanne’s seat.
According to a 2019 Politico article, the Trump Administration approached Kanne about retiring so it could choose the replacement. However, when Kanne said he would step down if Indiana Solicitor General Tom Fisher, who had been his law clerk, was nominated, then-Vice President Mike Pence is said to have squashed the nomination.
Collins noted the hardball politics Republicans are expected to play with judicial nominees if they take control of the Senate in 2023. As a result, he said, the public’s confidence in judges being impartial adjudicators is eroded.
“It’s bad all around,” Collins said. “I don’t know how to fix it because the Constitution says what it says and advising and consent has so far been understood to mean the Senate doesn’t have to do anything if it doesn’t want to do anything. It can just refuse to consider a nominee all together.”
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