Chicago Council of Lawyers Opposes the Confirmation of Thomas Kirsch
The Chicago Council of Lawyers, Chicago’s public interest bar association, opposes the confirmation of Thomas Kirsch, the United States Attorney for the Northern District of Indiana, to a seat on the Federal Court of Appeals for the Seventh Circuit.
President Trump nominated Mr. Kirsch for the seat vacated by Judge (now Justice) Amy Coney Barrett, who vacated her seat on the Seventh Circuit, when, following a hasty confirmation process, the Senate confirmed her as a Justice on the United States Supreme Court on a virtually straight party line vote.
President Trump nominated Mr. Kirsch on October 21, 2020, five days before the Senate confirmed Justice Barrett for the Supreme Court, thereby leaving her appellate court seat open.
But the Republican Senate Majority has now declared its intention to push Mr. Kirsch’s nomination through in the six weeks that remains of the 116th Congress. The usual confirmation process for appellate judges, however, takes several months at the least, and often more than a year. Judiciary Committee hearings on appellate court nominees have rarely, if ever, taken place in a three-and-half-week period, or anything close to it, like the one that will pass between Mr. Kirsch’s nomination and the Judiciary Committee hearing, which is currently set for November 18. The usual extended process allows adequate time for all the interested players, including, prominently, the organized bar, to scrutinize the nominee’s qualifications.
The time afforded the Chicago Council of Lawyers (Council) to scrutinize Mr. Kirsch’s qualifications prior to the Judiciary Committee hearing—and the Council historically has spent substantial time and effort reviewing the qualifications of all federal court nominees—has therefore been grossly inadequate.
Politicians from both parties attempt to paint federal judges, whose decisions have enormous consequences, our society, and our democracy, as nonpartisan. But any clear-eyed observer—and any practicing lawyer—knows that federal judges frequently mirror the political views and values of the Presidents who nominate them. Further, a president’s nominations to the federal bench have become a statistical testament to his commitment to diversity of it, i.e., the number and proportion of nominees who are women, African-American, Latinx, Asian, or gay or lesbian, as distinguished from heterosexual white males, such as Mr. Kirsch.
In this context, it is entirely unsurprising that, in general, President Trump’s nominees have proven hostile to litigants with the least power—plaintiffs who have suffered wrongs at the hands of large corporations or the state, criminal defendants, immigrants—and accommodating to entities or causes in line with the President’s political agenda—big business, voting restrictions, the expansion of federal executive power, and restrictions on women’s reproductive rights. President Trump’s nominations have been, generally, the least diverse of any president in the last 50 years; the Republican Senate Majority has, nonetheless, routinely confirmed virtually all of these (politically conservative and non-diverse) nominees.
The Republican Senate majority has acted as described to confirm President Trump’s nominees under the banner, stating the obvious, that “elections have consequences”—in this case, the election of President Trump. But famously in the case of President Obama’s nomination of Merrick Garland to the Supreme Court to fill the seat the death of Justice Scalia left unfilled, it exercised its confirmation authority to deny Judge Garland a hearing and a vote under a “let the voters speak” banner. Under this banner, if the winner of a presidential election might be from a different party than the sitting president making a Supreme Court nomination, then the voters should have a decisive say in who should fill the vacancy – with only the new president-elect being allowed to do so.
President Trump’s nomination of Mr. Kirsch lacks the legitimacy that would entitle him to the Council’s support. It lacks the legitimacy that a deliberate, careful confirmation process allowing for reasonable scrutiny of his qualifications would have carried with it. His confirmation will also dilute the diversity on the Seventh Circuit, when President-Elect Biden’s nominee for the seat, if it were left open for him to fill once he assumes office, might increase it. Finally, if the “let the voters speak” banner that the Senate Majority waved wildly in 2016 in response to the nomination of Judge Garland has any validity, then the election results are in and the voters have already spoken. And they have done so decisively, choosing Vice President Biden over President Trump by a wide margin – whether the voice of the electorate is measured by the projected popular vote margin (more 6 million votes) or the projected electoral vote margin (306 to 232).
It follows that the Seventh Circuit vacancy created by the elevation of Justice Barrett to the Supreme Court should not be filled by Mr. Kirsch at this time, and should remain open for President-Elect Biden to fill when he assumes office on January 20, 2021.
That result would, ironically, give vitality to the “elections have consequences” theory the Republican Senate majority has relied upon to confirm virtually all of President Trump’s nominees, so that his nominees, including 53 appellate court judges (a record number for any president since Ronald Reagan at this point in their tenures) now comprise more than one quarter of all active federal judges.
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