Indiana senator calls for judicial nominating commission

Sen. Dan Coats is calling for the appointment of a commission to assist in finding and nominating candidates for the vacancies on the federal bench.  

The Republican senator made the announcement May 13.

“We need to ensure that fair and qualified public servants with Hoosier common-sense are chosen for these important roles,” he said in a statement. “The citizens of Indiana will be best served by a nomination process that is taken completely out of politics.”

Sen. Joe Donnelly said Sen. Coats never raised this idea with him, and he only learned about it after the press release that was issued by Coats’ office Wednesday.

 “Frankly, I am still trying to determine why it was put forward at this time,” Donnelly said. “I have been working nonstop on this effort for 17 months now within the contours of an agreement I reached with Sen. Coats at the start. My goal remains the same and that is to fill these vacancies with qualified individuals.”

Coats noted the vacancies are accumulating on federal bench. Judge John Tinder has announced he will be stepping down from the 7th Circuit Court of Appeals and Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana publically declared her intention to take senior status.

In addition, the position of U.S. attorney for the Southern District of Indiana has been vacant since Joe Hogsett resigned to run for Indianapolis mayor. Furthermore, another vacancy will open in January 2016 when Judge Robert Miller takes senior status in the U.S. District Court for the Northern District of Indiana.

Expanding on his call for a commission, Coats described his relationship with Donnelly as a good working relationship and he hopes they will be able to agree on forming a nomination group.

Coats said given the political climate in Washington, D.C., Hoosiers would be best served by removing the nomination process from politics and assigning it to a commission that would take a bipartisan, consensus-driven approach to finding qualified candidates.

Details of who would be appointed to such a commission and how the members would vet and nominate candidates remain to be determined, Coats said. However, he noted, in the past Indiana’s senators, the governor and the chief justice of the Indiana Supreme Court have all chosen individuals to serve on such commissions.

Coats and Donnelly have provided few details about the nominating process. At the opening of his new Indianapolis office in February, Donnelly said he and Coats were working together on finding a candidate for the Southern District. The pair had been interviewing potential nominees and was hopeful to make a recommendation to President Barack Obama by the summer.
 
Coats maintained judicial selection commissions are not unusual in Indiana. Former Sens. Richard Lugar and Dan Quayle established the Indiana Merit Commission on Federal Judicial Appointments in November 1980.

That commission, according to Coats, recruited, interviewed, investigated and made recommendations for federal appointments for more than 20 years.

“I hope we can establish an equitable process for the remainder of this Congress that focuses on vacancies where workloads are most urgent,” Coats said.

In 2008, the American Bar Association appointed a task force to examine the judicial nominating process. That group, which included Indiana University Maurer School of Law professor Charles Geyh, recommended the use of nominating commissions. The task force found commissions could ensure the people being nominated were capable, qualified and diverse.

Former President Jimmy Carter promoted the use of judicial selection commissions as a means to improve the racial and gender diversity on the federal bench. He saw senators as likely tapping individuals who had similar backgrounds to their own but, he believed, a commission would have the ability to examine a broader swath of potential candidates.

In the 1980s, President Ronald Reagan changed the focus of the commissions. He used the groups to find candidates who shared his legal philosophy.

Geyh said nominating via a commission has risks but they are far outweighed by the value of looking at people from across the spectrum for appointment.

“My bottom line, there is a lot of good that can come from it,” he said.

The U.S. Courts Judicial Conference has added the Southern District of Indiana to its judicial emergencies list. Barker has been waiting 317 days to go on senior status and she has a weighted rate of 658 filings.