Now that Joe Biden has completed his first year of service as President of the United States and the U.S. Senate Democratic majority has concluded the initial session of the 117th Congress, how the chief executive and this upper chamber majority can best fill myriad district court vacancies needs scrutiny. President Biden’s White House and the razor-thin Democratic Senate majority actually realized considerable success in nominating and confirming twenty-nine district court judges throughout 2021. When the second session of the 117th Congress commenced in early January 2022, Biden and the Senate confronted sixty-eight district court vacancies, thirty of which comprised “judicial emergencies,” because of their substantial length, number or caseloads; yet, the numbers of vacancies and emergencies have essentially remained identical throughout 2022. Confirming federal judges is a critically important constitutional responsibility, which the President and the upper chamber must smoothly discharge. The Illinois experience regarding court appointments during the term of former Republican President Donald Trump and of the Republican Senate majorities in the 115th and 116th Congress provides a cogent, nuanced selection model for President Biden and the 117th Senate to carefully address this conundrum of American governance, even though what happened in Illinois during Trump’s tenure, while astute and cooperative, was rare.
Trump reminded the public that confirming an historic number of appellate court jurists was his administration’s consummate success. The former Grand Old Party (GOP) President and the Senate Republican majorities in the 115th and 116th Congress, spearheaded by Senate Majority Leader Mitch McConnell (KY), broke records by nominating and confirming fifty-four ideologically conservative, young, accomplished judges to the 179 congressionally-authorized court of appeals positions. Yet, their confirmations have actually imposed substantial costs, mainly on the ninety-four district courts across the country that must remedy sixty-eight vacancies among 677 court positions. For example, the resources that the former President and Senate majorities devoted to nominating and appointing record numbers of conservative appellate court judges consumed resources that otherwise could have been dedicated to nominating and appointing many district court jurists. Illuminating was Trump’s negligible effort to fill district court vacancies that materialized in numerous states, particularly jurisdictions that Democratic senators represented, including most prominently California, New Jersey, New York, and Washington.
However, the endeavors to fill the Northern and Southern District of Illinois vacancies comprise remarkable exceptions to this countrywide pattern. The successful court appointments which the Illinois district courts attained principally resulted from the concerted efforts of Illinois Democratic Senators Tammy Duckworth and Richard Durbin. The senators persistently invoked a number of bipartisan screening committees, which reviewed applications, interviewed candidates, and recommended highly qualified, centrist individuals to the senators, who in turn collaborated with the White House to appoint jurists for eight district court vacancies during Trump’s presidency. The Administrative Office of the U.S. Courts, which is the federal courts’ administrative arm, classified up to five clearly longstanding Illinois district court vacancies as “emergencies” throughout Trump’s presidency, while the tribunals had been resolving mammoth lawsuits. District court judges constitute the Illinois federal justice system’s “workhorses” and resolve substantial caseloads, while the numerous vacancies acutely pressure the state’s litigants, courts, jurists, tribunal staff, and practitioners. These phenomena epitomize conditions in many district courts around the nation. Meaningful coordination between former President Trump and the upper chamber––especially the Illinois senators––addressed these vacancies, so the exercise there can offer an instructive roadmap for President Biden and the Senate to promptly fill current vacancies across the nation.
Upon Trump’s 2016 presidential election, Illinois had only a single district court vacancy. The jurisdiction experienced a minuscule number of district court vacancies partly because during Durbin’s and Barack Obama’s tenures as senators, both had effectively represented the jurisdiction by being attentive to Illinois’ manifold serious federal court needs. After Obama was elected President in 2008, the White House had also cooperated with Illinois Senators Durbin and Mark Kirk (R), who deployed an efficient bipartisan merit selection panel, which comprehensively screened, interviewed, and recommended numerous preeminent, mainstream candidates, whom the senators concomitantly proposed to the White House. Notwithstanding these endeavors, several Illinois trial court vacancies materialized once Trump had assumed the presidency in January 2017. However, the former President neglected to muster a single choice before June 2018 and confirm one judge prior to July 2019.
In June 2018, Illinois Senators Duckworth and Durbin and the White House concurred about marshaling the nomination of exceptionally qualified, moderate Northern District of Illinois candidates, Martha Pacold, Mary Rowland, and Steven Seeger. The nominees duly realized a Judiciary Committee hearing that August and captured panel approval in October. Nonetheless, those nominations expired on January 3, 2019 when senators in which the 115th Congressional Senate returned nominations to the president. Trump only resent the nominations during late May 2019. All three nominees won powerful committee reapproval in June and the Senate confirmed Pacold and Rowland upon July’s conclusion and Seeger promptly in September. That June, Trump chose John Kness, another well qualified, centrist prospect for the Northern District of Illinois. The nominee enjoyed a smooth July panel hearing and he captured October committee approval but did not receive a chamber debate and confirmation ballot until February 2020.
During 2020, former President Trump and the Illinois senators addressed four additional Illinois district court vacancies. A pair in the Northern District of Illinois had been vacant since March and May 2019. Two vacancies in the Southern District of Illinois materialized that January and March. Two of these vacancies comprised emergencies; however, all four vacancies lacked nominees prior to February 2020. Accordingly, Trump, the Illinois senators––Durbin, who captured reelection to the Minority Whip position, and Duckworth––and their Senate colleagues redoubled collaboration and filled each of the vacancies. The Trump White House Counsel seemed to proactively consult the home state senators, who apparently coordinated effectively with the Illinois GOP House delegation to apply the preexisting bipartisan merit selection commission, which tendered four individuals on whom Trump, the senators, and the representatives concurred.
In early February 2020, Trump nominated Stephen McGlynn whom the pair of Illinois senators recruited for one Southern District of Illinois vacancy. One week later, the White House recommended Iain Johnston for the Northern District of Illinois while recruiting David Dugan and Franklin Valderrama for the residual vacancies in the Southern District of Illinois. The four prospects constitute experienced jurists; Johnston had served as a U.S. Magistrate Judge while Dugan, McGlynn, and Valderrama had served as Illinois state court jurists. However, the nominees waited over four months before the Judiciary Committee decided to convene a June hearing on their nominations.
The Illinois senators effectively cooperated with former President Trump and the chamber to seat experienced nominees who enjoyed bipartisan support in the four unoccupied positions. Senators Durbin and McConnell collaborated to schedule Kness’ floor debate and confirmation ballot. The President and the White House Counsel appeared to cooperate with all senators in the confirmation process, as Trump and the Counsel had agreed with the Illinois senators on competent, mainstream nominees whom the White House had proffered for the earlier vacancies. Duckworth and Durbin seemingly persuaded Senator Lindsey Graham (R-SC), who had become the Judiciary Committee Chair, to move rather promptly, because he staged a late June hearing with expeditious July 30 deliberations and reports on the nominees. The Illinois senators’ constructive efforts also facilitated September chamber debates and confirmation votes.
The productive Illinois appointments regime sharply contrasted to selection endeavors in numerous other jurisdictions which Democrats represented, partly because Durbin has long been a senior judiciary panel member and now serves as Chair. Particularly egregious were California in which merely five judges of seventeen emergency district court vacancies were confirmed in late 2020, New Jersey in which none of the six emergency vacancies were filled, and Washington in which five emergencies, among seven total active judgeships, remained unfilled.
In short, over early 2020, Illinois confronted multiple district court vacancies that had recently opened and lacked nominees until February, three of which the Administrative Office categorized as emergencies. Illinois Senators Duckworth and Durbin, their chamber colleagues, and the White House Counsel resolved to efficiently nominate and confirm experienced judges to these vacancies, filling the congressionally-authorized judicial complement for Illinois. Both home state senators’ incisive actions to collaborate with the President and deploy bipartisan screening committees effectuated this increasingly rare district court tale of success. The confirmations enabled district courts and jurists to continue promptly, economically and fairly resolve large caseloads.
In the end, the efficacious Illinois nomination and confirmation processes must serve as guideposts to fill the numerous district court vacancies which currently plague the federal trial court system. President Biden has consulted senators from jurisdictions with open positions because his service as a Judiciary Committee member across thirty years, panel Chair for seven of those years, and Vice President over eight years taught Biden the value of consultation. Home state lawmakers have effectively activated numerous professional bipartisan merit selection commissions, which investigated, evaluated, and proposed numbers of impressive, moderate designees, whom the senators proffered to the chief executive. The administration in turn has chosen numerous prominent, mainstream aspirants while cooperating with home state legislators and their Senate colleagues to expeditiously review and confirm them. All of those constructive initiatives will facilitate the appointment of excellent, centrist jurists to the many vacancies throughout America.
Carl Tobias is the Williams Chair in Law at the University of Richmond School of Law. He wishes to thank Margaret Sanner, Jane Baber, Carley Ruvail, and Jamie Wood for their valuable suggestions, Leslee Stone and Ashley Griffin for their excellent processing, Northwestern University Law Review Senior Online Editors HanByul Chang and Taylor Nchako for their expeditious, careful, and flexible editing, for patience, and for sound advice, the University of Richmond Law Library Staff for their excellent research, as well as Russell Williams and the Hunton Andrews Kurth Summer Endowment Research Fund for their generous, continuing support.