Thomas L. Kirsch II Selected by Trump to Replace Amy Connie Barrett in Her Vacant Appeals Seat
Amy Connie Barrett
With Judge Amy Coney Barrett now on the Supreme Court, a new vacancy has opened at the 7th U.S. District Court of Appeals where she previously sat, and President Trump has already named the person he plans to replace in that bench.
Add to that the death of the first US District Court of Appeals judge, Juan Torruella, reported Monday by Reuters, and Senate Majority Leader Mitch McConnell, Kentucky. even if both the Republicans in the Senate and the president lose the November 3 elections.
In replacement Barrett Trump announced last Wednesday that he plans to nominate Thomas L. Kirsch II, who is currently the US Attorney for the Northern District of Indiana.
Kirsch is a former clerk for Judge John Daniel Tinder in the Southern District of Indiana, previously a partner in a private law firm and held other positions in the Department of Justice (DOJ). Kirsch graduated from Indiana University and Harvard Law School.
It’s unclear who Trump might be nominating to replace Torruella.
After the Senate approved Judge Cory Wieson for the 5th arrondissement earlier this year, McConnell took pride in the fact that there were no official vacancies for district judges.
“When we leave this chamber today, for the first time in 40 years, there will be no vacancy in the county court in the country,” McConnell said at the time.
“The single most important thing we can do is life-long court appointments for men and women who believe it is the job of a judge to follow the law,” he said at the 2018 Values Voter annual conference.
The Majority Leader acted under the slogan “Not a single vacancy remained” and may not have to leave these newly opened vacancies in the district.
Trump announced his intention to nominate Kirsch on October 21, leaving a reasonable deadline open for his approval by the Republican Senate, even if the GOP loses its majority.
Traditionally, for district court candidates, senators are given four weeks’ notice after the candidate is announced prior to the Judicial Committee hearing, and then four weeks after the hearing prior to voting on the candidate.
DC District Judge Justin Walker, who was fiercely opposed by Democrats earlier this year, for example, was nominated on April 3. On May 6, the Judicial Committee held a hearing on him and on June 4 voted to remove him from the committee. June 18.
If a similar timetable is followed from the moment Trump announced his intention to nominate Kirsch – Krisha has not yet been formally appointed because Barrett has not yet sat on the Supreme Court – there could be a vote on Kirsch’s judicial committee before Christmas.
The new Congress will meet on January 3, 2021, which means that if Republicans lose their Senate majority, they will need to approve it before that time. But if they maintain a Senate majority and Biden becomes president, they can approve it in early to mid-January before Biden takes office on January 20.
If the Republicans retain the Senate and the White House, of course, the time pressure on the nomination will go away.
Efforts to confirm Torruella’s successor will be tighter as news of his death emerged on Monday.
Republicans will likely need to speed up the succession process faster than is usually done for district nominations to ensure that the person is approved by January 3 if Republicans lose both the presidency and the White House.
But this tradition is just a tradition, not a rule.
And there is a modern precedent where the process of confirming a district judge took place during the senseless months of the first presidential term.
Former President Jimmy Carter appointed Stephen Breuer, who is currently a Supreme Court Justice, to the first district after he lost the 1980 presidential election. It was confirmed shortly thereafter, on December 9th.
This, of course, happened before there was an outcry over judicial appointments today, which many attribute to Democrats blocking Reagan’s candidacy, Robert Bork.
Stuart E. Eisenstat, a former adviser to Carter, wrote in the Washington Post in 2016 that the late Senator Strom Thurmond, South Carolina, even at the behest of the late Senator Edward Kennedy, Massachusetts, had generated Republican support for Breuer.
Democrats condemned the Republican effort not only to fill three Supreme Court seats during Trump’s tenure so far, but their stubborn commitment to filling vacancies in circuit and circuit courts as well.
Senator Chris Koons, a Democrat, told MSNBC presenter Rachel Maddow on Monday night that he wants to have a “wide open conversation about how we will rebalance our courts” in light of McConnell and Trump’s four-year focus on filling judicial vacancies.
No matter the issues around the corner, Amy Connie Barrett finally becomes the judge of the Supreme Court.