Thomas Kirsch – Nominee to the U.S. Court of Appeals for the Seventh Circuit

U.S. Attorney Thomas Kirsch, nominated to replace now-Justice Amy Coney Barrett, has an exceedingly narrow time window to confirmation.  Nonetheless, with the Presidency switching parties in two months, Republicans are nonetheless expected to prioritize the nomination.

Background

Thomas Lee Kirsch II was born on January 25, 1974.  He attended Indiana University, graduating in 1996.  He then received his J.D. from Harvard Law School in 1999.  After graduating, Kirsch clerked for Judge John Daniel Tinder on the U.S. District Court for the Southern District of Indiana.[1] 

After his clerkship, Kirsch spent a year at the firm of Jenner & Block and then joined the U.S. Attorney’s Office for the Northern District of Indiana as a federal prosecutor.  In 2006, Kirsch was detailed to Main Justice as Counsel for the Office of Legal Policy.

In 2008, Kirsch left to join the Chicago office of Winston & Strawn as a Partner.  He worked as the firm until he was chosen to be U.S. Attorney for the Northern District of Indiana by the Trump Administration in 2017.[2]  He continues to work in that capacity today.

History of the Seat

Kirsch has been nominated for an Indiana seat on the U.S. Court of Appeals for the Seventh Circuit.  This seat opened on October 26, 2020, when Judge Amy Coney Barrett was elevated to the U.S. Supreme Court.  Kirsch’s nomination was announced five days earlier on October 21, 2020.

Political Activity

Kirsch has occasionally donated to political candidates, exclusively Republicans.[3]  Among the recipients are Sen. John McCain, Sen. Richard Lugar, Sen. Mitt Romney, Rep. Todd Rokita, and Sen. Todd Young.

Legal Practice

Kirsch’s first legal position after his clerkship was at Jenner & Block.  Since that point, he has extensive experience in two primary roles: as a federal prosecutor; and as a defense attorney at Winston & Strawn.

Federal Prosecutor

From 2001 to 2008, Kirsch worked as a federal prosecutor in the Northern District of Indiana.  During his time with the office, Kirsch prosecuted James Fife, an aide to East Chicago Mayor Robert Pastrick, for hiding hundreds of thousands of dollars in public money.[4]

Winston & Strawn

In 2008, Kirsch joined the Chicago Office of Winston & Strawn as a partner.  At Winston, Kirsch primarily focused on white collar criminal defense, including advising companies that were targets of government investigations.  

Among the most notable cases he handled at Winston, Kirsch represented William Cellini, an Illinois Republican with close ties to former Gov. Rod Blagojevich who was convicted for extorting campaign contributions from Blagojevich.[5]  Kirsch also represented TV pitchman Kevin Trudeau, who was convicted of lying in his infomercials.[6] 

U.S. Attorney

Since 2017, Kirsch has served as U.S. Attorney for the Northern District of Indiana.  In this role, Kirsch leads all federal prosecutors in the district, sets enforcement priorities, and handles high profile matters.  Notably, shortly after his confirmation, Kirsch had to oversee a series of high-profile prosecutions related to the use of pipe bombs.  For example, Kirsch prosecuted GOP activist Eric Krieg for mailing a pipe bomb to an attorney (the bomb exploded at a post office).[7]  More recently, Kirsch has led investigations into scammers targeting individuals during the coronavirus pandemic.[8]

Writings

As an associate at Jenner & Block, Kirsch authored an article discussing the difficulties of securing victim cooperation in prosecuting domestic violence.[9]  In the article, Kirsch discusses various factors that might lead victims not to cooperate with prosecutors, and evaluates the possibility of forcing victims to testify.  Kirsch ultimately concludes that the costs of forcing a victim to participate, which include the possibility of retraumatizing the victim, ultimately outweigh the benefits.[10]

Overall Assessment

As Barrett was undergoing confirmation to the U.S. Supreme Court, the White House vetted a number of candidates for the Seventh Circuit, including White House attorney Kate Todd.[11]  In choosing Kirsch over a younger, more ideological choice like Todd, the White House is recognizing the political reality.  No President since Jimmy Carter has seen a post-election confirmation of an appellate nominee (and the confirmation of Judge Stephen Breyer late in 1980 was only done with the acquiescence of Senate Republicans).  With Democrats unlikely to endorse filling judgeships this late in the Trump Presidency, Republicans will have to stick together to confirm Kirsch.  The good news for Kirsch backers is that the nominee is unlikely to incite much opposition and, barring any unexpected developments, Republicans are likely to squeeze him through.


[1] Tinder was later elevated to the Seventh Circuit and held the seat that Kirsch now seeks appointment to.

[4] See A.P., Former East Chicago Mayor Aide Gets Prison Time for Hiding Money, A.P. State & Local Wire, Apr. 3, 2006.

[5] See Michael Tarm, Prosecutors: Cellini Deserves 8 Years in Prison, A.P. State & Local Wire, July 13, 2012.

[6] See Michael Tarm, TV Pitchman Jailed After Jurors Find Him Guilty, A.P. State & Local Wire, Nov. 12, 2013.

[7] A.P., Man Gets 29 Years for Post Office Pipe Bomb Addressed to Lawyer, The Indiana Lawyer, Apr. 5, 2019, https://www.theindianalawyer.com/articles/49911-man-gets-29-years-for-post-office-pipe-bomb-addressed-to-lawyer.

[8] See Marek Mazurek, Scammers Capitalize on Virus Fears, South Bend Tribune, Apr. 13, 2020.

[9]Thomas L. Kirsch II, Problems in Domestic Violence: Should Victims Be Forced to Participate in the Prosecution of Their Abusers?, 7 Wm. & Mary J. of Women & L. 383 (Winter 2001).

[10] See id. at 426-27.

[11] Chip Somodeville, Trump and McConnell Are Reportedly Already Discussing Amy Coney Barrett’s 7th Circuit Replacement, The Week, Sept. 28, 2020, https://theweek.com/speedreads/940066/trump-mcconnell-are-reportedly-already-discussing-amy-coney-barretts-7th-circuit-replacement.   

2 Comments

  1. Judges have been confirmed (and sometimes even nominated) in post-election Senate sessions since the earliest days of the Republic, when the President’s party had the votes to do so, with John Marshall being the most prominent. Although such actions have been rare in recent decades because the minority party could use the filibuster to block them, Harry Reid put an end to that with his short-sighted move in 2013 to abolish the filibuster for judicial nominations.

    Under Reid, Senate Democrats confirmed more than 2 dozen judicial nominations after losing control of the chamber in the 2014 election. The GOP, which appears favored to retain its Senate majority after the GA runoffs, is likely to return the favor this year by confirming many of the outgoing President’s remaining nominees.

    https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2015/01/confirmations/html

    Like

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