Back in May, Senate Republicans openly mulled reforming the “blue slip” process to allow a federal judicial nominee to advance to a vote even if one home-state senator opposed the nomination. Now that reform is set to take place for two Court of Appeals nominees, David Stras of Minnesota and Kyle Duncan of Louisiana.
Debates over the blue slip process always feature some of the worst hypocrisy in the Senate, with the party in power (here led by Sen. Charles Grassley) waxing poetic about the Senate’s obligation to give every candidate a fair vote and the opposition party (here led by Sen. Dianne Feinstein) cynically urging that the president’s nominees are all dangerous extremists.
Imagine if other organizations had to rely entirely on outsiders to staff their core positions.
Since 2005, the United States District Court for the Eastern District of North Carolina has had an open seat, the product of partisan bickering in the Senate. George W. Bush nominated attorney Thomas Farr for the seat in 2006, but Senate Democrats failed to process the nomination. Barack Obama subsequently nominated two different women to the seat during his presidency, but both nominations were blocked by Senate Republicans. Now Donald Trump has come full circle, re-nominating Farr for the same seat. And despite deep opposition by Democrats, Farr’s nomination advanced out of the Senate Judiciary Committee yesterday on a straight party-line vote.
It’s unclear who benefits from this partisan rancor, but it is very clear who loses: the courts and the public. For a dozen years since Judge John Malcolm took senior status, the Eastern District has been down an active district judge. Given that the district is only authorized to have four active judges, the court has been operating at only three-quarters capacity for more than a decade — and through no fault of its own.
I have no opinion on whether Mr. Farr is the right man for the job. But the public should reject as outlandish that the seat was not filled by someone long ago.
U.S. Magistrate Judge Charles Goodwin, of the Western District of Oklahoma, has been deemed “unqualified” for the position of district judge by the American Bar Association’s Standing Committee on the Federal Judiciary. President Trump nominated Judge Goodwin to the district bench in July. The ABA gave no direct explanation for the “unqualified” designation.
Although the ABA’s evaluations of federal nominees date back to the Eisenhower Administration, recall that the Trump Administration has declined to share the names of its potential nominees with the ABA before nominations are announced. That approach (rare, but also used by George W. Bush) increases the likelihood that a nominee will be publicly identified as unqualified. (Potential nominees who receive a poor evaluation before an announcement is made can always be quietly dumped by the administration).
Judge Goodwin’s evaluation was not publicly released by the ABA; it was evidently leaked from a memorandum send to Senators Charles Grassley and Dianne Feinstein. And Oklahoma’s Senators are standing by the nominee. But now that the evaluation is out, it raises serious questions about the qualifications and temperament of a sitting federal magistrate judge. Although magistrate judges do not serve for life, they do serve eight-year renewable terms. Judge Goodwin assumed the bench in 2013, and would be in place until at least 2021. It might prove to be an uncomfortable four years, and a more uncomfortable reappointment process, if his district court nomination is unsuccessful
The Senate Judiciary Committee yesterday advanced the nominations of four individuals for the federal bench. They are Ralph Erickson (8th Circuit), Donald Coggins Jr (D.S.C.), Dabney Friedreich (D.D.C.), and Steven Schwartz (Court of Federal Claims). Only Mr. Schwartz proved to be a controversial vote; he was passed 11-9.
President Trump has announced a new wave of federal judicial nominees, mostly to vacant positions on the Circuit Courts of Appeal. Notably, they include Gregory Katsas, the current deputy White House Counsel, who was nominated for a seat on the D.C. Circuit.
In June, I flagged an interesting story of five judicial candidates in Brooklyn who are aggressively running against the Democratic Party machine. These candidates, led by John O’Hara (a lawyer with a colorful and checkered past), assert that the borough’s independent screening panel is really just an arm of the local Democratic Party, and subject to the wishes of party bosses. All but one of the insurgent candidates has refused to go before the panel .
With the primary about a month away, the New York Law Journal weighs in with an article that captures the essence of the insurgency, as well as the establishment position. The crux of their claims: the party asserts that the 24-member screening panel simply determines candidates’ fitness for the bench, and expects no quid pro quo for the candidates it deems qualified. The O’Hara group alleges that the panel is essentially a mechanism for attorney members to receive future favors from the candidates they endorse.
I generally favor screening panels or nominating commissions as part of a comprehensive judicial selection process. But this challenge makes clear that if the panel itself is not seen as legitimate, neither will the judicial candidates it endorses. And New York has a long and unfortunate history of party boss control over the selection of local judges. We’ll see how it plays out at the September 12 primary.