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There’s a tried-and-true process to filling judicial vacancies, with a nominee’s winding route to the federal bench ending with a U.S. Senate confirmation vote.
Of all the current Indiana judicial nominees, Magistrate Judge Joshua Kolar of the U.S. District Court for the Northern District of Indiana is the farthest along on his route to fill a vacancy.
Kolar’s nomination to the 7th Circuit Court of Appeals advanced through the Senate Judiciary Committee by a 16-5 vote in September.
His nomination is now pending before the full Senate to fill the vacancy created by the death last summer of Judge Michael Kanne.
It’s possible the Senate might still confirm Kolar before the year is out, said Carl Tobias, a University of Richmond School of Law professor, although time is running short for a 2023 vote.
Whether Kolar gets confirmed this year or next, Tobias said he expects the Biden administration and the Senate to keep up the pace in early 2024 and attempt to fill as many federal judicial vacancies as possible.
“I don’t think the White House is going to slow down,” Tobias told Indiana Lawyer.
While Kolar waits on the full Senate, a pair of northern Indiana trial judges on Dec. 13 made their first appearances in front of the Senate committee as nominees to the Indiana Northern District Court.
St. Joseph Superior Judge Cristal C. Brisco and Elkhart Superior Judge Gretchen S. Lund faced a brief round of questions from the committee after being introduced by Indiana Republican Sen. Todd Young.
Brisco and Lund’s nominations probably won’t get out of committee until 2024, said John Collins, an associate professor at George Washington University Law School.
Collins opined that February or March is probably when both Northern District nominees will see a full Senate vote on their nominations.
“It’s possible they could jump the line,” he added.
Tobias said he thinks the Senate committee will conduct a discussion on Brisco and Lund and take a vote at a meeting in January. He said he expects that the Senate will then debate and have a confirmation vote in February.
Indiana Northern District
Brisco and Lund’s nominations were announced by the White House on Nov. 15, less than a month before their initial appearances in front of the Senate Judiciary Committee.
If confirmed, they would fill the vacancies created by Judges Theresa Springmann and Jon DeGuilio taking senior status on Jan. 23, 2021, and July 17, 2023, respectively.
Brisco currently presides in St. Joseph Superior Court 4, where she also serves as a commercial court judge. She was appointed to the bench in 2021 after having served as a magistrate judge in St. Joseph Circuit Court since 2018.
She has been nominated to fill Springmann’s seat.
Lund was elected in 2014 and took the bench in Elkhart Superior Court 4 in 2015. Before that, she had served as judge of the Goshen City Court since 2008.
She has been nominated to fill DeGuilio’s seat.
Both judges had the support of Young, Indiana’s senior senator.
Tobias and Collins each cited the cooperation between Young and his counterpart, Indiana Republican Sen. Mike Braun, with the Biden White House as a key to filling vacancies.
“Not every red state has been as cooperative as Indiana,” Collins said.
Tobias said he doesn’t think Brisco or Lund are controversial nominees, and both have strong state court experience.
“I think it will go smoothly and quickly,” he said of the judges’ confirmation process.
7th Circuit
Kolar has been a magistrate in the Indiana Northern District since 2019. He also serves as a lieutenant commander in the U.S. Navy Reserve, where he has served since 2009. He was on active duty in Afghanistan from 2014 to 2015.
Although his would-be predecessor, Kanne, died June 16, 2022, Kolar wasn’t nominated to fill the vacancy until July 27 of this year.
His nomination was announced on the same day as the nomination for Rich Federico, a federal public defender in Kansas.
The Senate voted 61-29 on Dec. 11 in favor of Federico’s confirmation to a seat on the 10th Circuit Court of Appeals. According to Reuters, the bipartisan vote came after both of Kansas’ Republican senators threw their support behind Federico — the same dual-senator support that Kolar has.
Tobias said he thinks Kolar will be next in line for a confirmation vote.
Also, with budget items and issues like Ukraine funding still needing to be resolved, Tobias said he thinks that senators will stay in Washington until at least the week before Christmas.
Collins agreed that Kolar should be next in line for a confirmation vote, whether it happens this year or in 2024.
“I’m hoping they push him through before the end of the year,” Collins said.
Southern District
There has not been a nomination announcement yet for the upcoming vacancy in the U.S. District Court for the Southern District of Indiana, where Judge Jane Magnus-Stinson has announced she will be assuming senior status in July 2024.
Collins said it seems like Magnus-Stinson’s seat on the Southern District bench should an easy one to fill. He also noted that the Biden administration has now matched the pace of the Trump administration in filling federal judicial vacancies.
Tobias said he expects the White House and Indiana’s two Republican senators will once again work together to come up with a nominee and ensure a smooth transition when Magnus-Stinson assumes senior status.
Senior Judge Tom Felts, current Indiana State Bar Association president, said his understanding is that federal judges have to give substantial lead time when they retire or assume senior status.
Felts said he has not received direct feedback from any ISBA members that unfilled federal judicial vacancies have led to delays in cases being heard and working their way through Indiana’s Northern and Southern Districts or the 7th Circuit.
But Felts also noted that from a logical standpoint, it would make sense that a reduced number of judges on the bench might result in delays in the resolution of cases.
He said Gov. Eric Holcomb’s office had worked hard to fill judicial vacancies on the state level.
“The federal government works a little slower than the state government on these things,” Felts said.•
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