Judge Robert Kirsch – Nominee to the U.S. District Court for the District of New Jersey

A Republican nominated to the state bench by a Democratic Governor, Judge Robert Kirsch is now poised to be elevated to the federal bench by a Democratic President.

Background

Born in 1966, Robert Andrew Kirsch grew up in South Orange in New Jersey. Kirsch received a Bachelor’s Degree from Emory University in 1988 and a J.D. from Fordham University School of Law in 1991.

After graduating, Kirsch clerked on the U.S. District Court for the Southern District of Florida for Judge William Zloch and then spent four years with the U.S. Department of Justice Civil Division. In 1997, Kirsch became a federal prosecutor with the U.S. Attorney’s Office for the District of New Jersey. In 2010, Kirsch was appointed to be a state judge in New Jersey by Democratic Governor Jon Corzine at the recommendation of Republican State Senator Tom Kean. Kirsch still serves as a state judge.

History of the Seat

Kirsch, a Republican, was recommended for the federal bench in New Jersey by Senator Robert Menendez. He has been nominated to replace Judge Freda Wolfson, who will take senior status on February 1, 2023.

Legal Experience

Kirsch started his legal career as a law clerk to Judge William Zloch. He then spent four years with the Civil Division at DOJ. While there, Kirsch participated in a legal malpractice suit against a federally chartered Savings & Loan. See Resolution Trust Corp. v. Rosenthal, 160 F.R.D. 112 (N.D. Ill. 1995).

Between 1997 and 2010, Kirsch worked as a federal prosecutor in New Jersey. At the office, Kirsch primarily handled white collar cases. Notably, he prosecuted Chip Hoffecker, who was sentenced to 17 years in prison for defrauding investors. See Ted Sherman, Ex-Federal Prosecutor is Sworn in as Union County Superior Court Judge, Apr. 18, 2010, https://www.nj.com/news/2010/04/former_us_attorney_judge_sworn.html.

Outside of the white collar context, Kirsch participated in suits over the detention of individuals at Guantanamo Bay. See Gina Holland, Judge Refuses to Stop Hearings at Guantanamo Bay, Rejects Unfair Claim, A.P., Aug. 3, 2004. He also worked to prosecute the distribution of illegal steriods in New Jersey. See Michael O’Keefe, Huge Roid Raid in N.J. Basement, New York Daily News, Sept. 21, 2007.

Judicial Experience

Kirsch has served on the Superior Court in Union County since 2010. Among the cases he handled there, Kirsch presided over the juvenile adjudication of Carlton Franklin for the murder committed in 1976, when he was 15. See Kate Zernike, Man, 52, is Convicted as a Juvenile in a 1976 Murder, Creating a Legal Tangle, N.Y. Times, Dec. 22, 2012. Kirsch sentenced Franklin to ten years in prison, which was upheld on appeal. State in Interest of C.F., 132 A.3d 426 (N.J. Super. App. Div. 2016).

Overall Assessment

Kirsch has received bipartisan support throughout his legal career, and this is unlikely to change at this stage. While many progressives may be disappointed with Menendez (and Biden) choosing to appoint a Republican to this seat, it is unlikely to derail Kirsch’s confirmation.

111 Comments

  1. This is absolutely a horrible pick. While I’m sure judge Kirsch is a fine person & judge, there is no reason whatsoever for a Republican to be nominated for a federal judgeship in a blue state like New Jersey. It doesn’t even look like this is a never Trumper which maybe could justify the recommendation. Hell, if they wanted to reward him they could have convinced governor Murphy to put him on the Nee Jersey SCOTUS since they have a partisan balance tradition there.

    This pick caps off New Jersey being the worst state for Biden judges. Between multiple judges in their 60’s to corporate side attorneys, Menendez & Booker mine as well had worked out a package deal to get most of these judges nominated by Trump so floor time wouldn’t be wasted under Biden. There’s one additional vacancy left & I’m sure that will be another disappointment.

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    • Agree on this, and not to mention that this type nominee is already well over represented on the courts. I wouldn’t be shocked to see Warren or another progressive Democrat vote no. The good news is that he shouldn’t need a roll call vote due to him being a Republican.

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  2. If you want to see where I truly worry about a circuit court vacancy, the 3rd Circuit with New Jersey is it.
    I shudder to see who would replace Joseph A. Greenaway if he chooses to take senior status this year or next given how awful some of the NJ nominees have been.

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    • Either of the woman governor Murphy put on the New Jersey SCOTUS would be great for the third circuit. I too fear the senators would try to push for Justin Neal or Zahid Quraishi.
      I could see them pushing for Esther Salas & Biden probably would agree since she is Latina, an Obama appointee & because of what happened to her son. She would be good other than her age.

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      • Pierre-Louis seems possible given the administration’s focus on nominating Black women, but there’s no world in which the senators that recommended Kirsch and O’Hearn are going to advocate for Wainer Apter (though she’d be my preferred choice for the seat by far). Given how the administration has handled the NJ senators so far, I have zero confidence in their ability to fill the Greenaway seat with an actual progressive.

        Honestly, the best way to fix the NJ problem would probably to (1) push Booker harder on this and see if he sees judgeships as a way to pay back favors or if he actively wants moderate judges, and (2) primary Menendez.

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    • My guess is that Quraishi may be a (if not the) front runner for any potential Greenaway vacancy – he’d be the first Muslim judge and was confirmed for the district court judgeship with significant support. Muslim advocacy organizations were not very supportive of Biden nominating someone who literally worked for ICE though, and I’ve yet to look into his record as a district court judge to see how liberal or conservative he has been. My hunch is that Quraishi will not be anything for progressives to get excited about though, and he may even be to the right of Greenaway.

      But for all we know, Menendez could push for Kirsch or some other Republican for a CA3 vacancy. Honestly given all of Menendez’s issues, I wouldn’t be surprised if Kirsch has something on him and got the recommendation that way.

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  3. While Biden has deferred to Democratic senators (and sometimes Republicans) on circuit and district court seats more then we would like sometimes, I don’t see where he and Klain would allow a flip of a seat, regardless of what Menendez pushes.

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  4. Abhorrent pick.

    I’m not sure how much duty stations played in these recommendations, but I doubt it as Fabiarz was picked for Judge Noel Hillman’s seat (Camden duty station) and Kirsch was picked for Judge Freda Wolfson’s seat (Trenton duty station).

    So many picks that would’ve been better. While they were both meh, Zahid Quraishi and Karen Williams had both previously been Magistrate Judges. Several current New Jersey Magistrate Judges would’ve been better:

    -Sharon A. King (Camden duty station). While she was born around 1967, she is extremely progressive (she focused on representing victims of police brutality while in private practice). Would be A+ if 10 years younger.

    -Elizabeth Pascal (Camden duty station). Born c. 1971 and clerked for Judge Wolfson. While she was an Assistant US Attorney, she also worked for the Department of Education’s Office of Civil Rights.

    -Jose Almonte (Newark duty station). Born c. 1978. While he is a former Assistant US Attorney, he’s younger and Latino.

    -Andre Espinosa (Newark duty station). Born c. 1974. Prosecuted mostly white collar crime as an Assistant US Attorney so wouldn’t be that different than Fabiarz (other than the fact that he’s Latino) but much better than Kirsch.

    -Rukhsanah Singh (Trenton duty station). Born c. 1981. Younger and Indian-American.

    Other state judges would’ve been better too:
    -Rahat Babar (New Jersey Vicinage 7 Superior Court) (Trenton or Camden duty station). Born c. 1981. Would be the first Bangladeshi-American man to serve as a federal judge.

    -Kalimah Ahmad (New Jersey Vicinage 6 Superior Court) (Newark duty station). Born c. 1975. Former Jersey City city councilwoman. Would be the first black Muslim federal judge.

    -Veronica Allende (New Jersey Vicinage 6 Superior Court) (Newark duty station). Born c. 1981. Former Assistant US Attorney but young and Latina.

    -Avion Benjamin (New Jersey Vicinage 5 Superior Court) (Newark duty station). Born c. 1976. Would be the first Trinidadian-American federal judge.

    -Dara Aquila Govan (New Jersey Vicinage 12 Superior Court) (Newark duty station). Born c. 1975. Former Assistant US Attorney who mostly prosecuted government fraud and is Afro-Latina.

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  5. I’m not sure what Biden is waiting for, to send the remaining nominees to the senate. If he doesn’t send the rest of the names by Wednesday’s SJC hearing, there won’t be any circuit court nominees for the third straight hearing. Right now the only names sent to the senate who has not had a hearing are Matthew P. Brookman, Michael E. Farbiarz & Robert Kirsch. There’s a real risk of Wednesday’s hearing only having 3 judicial nominees & probably the nominee for Secretary of baking cookies or some other position nobody has ever heard of.

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    • I would be more worried if Biden had submitted everybody else name but there are still over a dozen other nominees he has not sent to the senate yet. I’m not worried long term about Wamble getting confirmed. He’s the son in law of one of Biden’s earliest backers in the House & from a red state so no issue if the home state senator doesn’t support him like the case in Maryland for instance.

      I’m just more upset that it took 3,160 days between Robert Wilkins & Andre Mathis to confirm a Black man to any circuit court. Now that we have another Black man nominated, not only has another circuit court nominee that was nominated the same day as him (Benjamin), but also another that was nominated after him (Johnstone) had already been given a hearing & voted to the floor while Wamble doesn’t even have his name resubmitted yet.

      This goes back to what I wrote last year. The harder you make it to confirm Black men to the circuit courts, the less likely senators will recommend them to The White House. I understand there is only so much SJC & senate floor time but it always seems to me that Black men take a back seat when it comes to the circuit courts if given a seat at all. I jut hope Biden sends his, as well as the other names to the senate in the coming days. We are more then 2 months since the midterms & no movement yet on judges. I know there’s two more years but when you factor in a 3 day work week & no less then three separate months with basically no days in session, it will be election season again before you know it.

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      • I think Biden made it pretty clear that his administration would focus on black women being appointed to the judiciary. He also said they would seek more diversity in the experience of prospective nominees public defenders etc.

        It has been shown that black women support the Democratic Party in higher numbers than any group. That’s how politics work: you support the base that gets you elected.

        Since most black men have black mothers ,I fail to understand how Biden’s selection process can be seen as an attack on them .

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      • I fully support more Black men appellate nominees as we’ve discussed before, so no need to relitigate that. I just think it requires jumping through a lot of hoops to think that Mathis or Wamble are “hard to confirm” because they’re Black rather than because they’re from red states with uncooperative senators. It’s also hard to blame Democrats for Trump not nominating Black judges/the Republicans stonewalling things after 2014, which makes up most of the 3,000 days you mentioned.

        Don’t get me wrong – Senate Dems are no doubt lazy and and not prioritizing judicial nominations like Republicans did, but I also think we have unrealistic expectations for how quickly they’ll move when most Dem senators either (1) don’t care about judges or (2) see judgeships as rewards to be doled out to their supporters. I get the frustration with seeing a nominee you care about still not being confirmed (I feel that way about Abudu, Rikelman, Bloomekatz, etc.), but I’m not seeing any logical basis to see scheduling issues as part of some attack on Black men.

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      • I guess for me, the issue with confirming Black men to the circuit courts is just part of an overall frustration when it comes to Democrats & the way they handle the courts (Albeit I will admit it has gotten better over the past few years) versus Republicans. But specifically to Black men, it just seems as though they always seem to get the short end of the stick.

        Even if you go back to the third most recent Black man confirmed, Robert Wilkins was nominated the same day as two other nominees (Both White woman) in 2013. After Harry Reid nuked the filibuster, the two woman were both confirmed before the end of the year while Wilkins wasn’t. He had to be resubmitted & confirmed the next year.

        But I do agree with Hank I don’t think Democrats are intentionally holding back Black men’s confirmations. Hopefully Biden resubmits these nominees & Wamble finally gets his well deserved hearing on February 8th.

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  6. I’m generally more lenient on relatively conservative nominees than a lot of posters, but I just don’t get Kirsch’s nomination. He’s not an outstanding jurist and whilst he may not be a Trumpy Republican, I doubt he’s necessarily moderate either. Just a bit baffling.

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  7. Just to hijack the thread slightly, I see Amanda Brailsford has been nominated for the Idaho District vacancy. I know this vacancy was discussed quite extensively, but I can’t remember what the consensus on Brailsford was. Could someone remind me?

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      • Biden has nominated 7 judges for Illinois (2 for the 7th, 1 for the Central district & the rest for the Northern district). I think the only real complaint about any of the 7 was regarding John Lee. And while his age was one of the complaints, there was other reasons as well.

        For one, there were other more progressive choices even if you just looked for AAPI possibilities such as Jennifer Nou. Also, when you elevate a district court judge to the circuit courts, you now have to spend SJC & senate floor time to backfill their district court seats. So I for one think the nominee should really be worth that time. I didn’t put Lee in that category. In addition, many felt Biden has lacked nominating law professors (Only 1 to date) to the circuit courts. Both Jennifer Nou as well as John Rapporport would have been great opportunities to nominate over Lee. So that was the substance of the argument in addition to his age.

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      • Cummings is 60. That makes him only 6 years younger than the last NDIL judge to go senior, and older than Feinerman (who just resigned after a decade on the bench) and Lee (who was elevated after a decade on the bench). I care less about age than some others on this blog, but he may be the oldest judge ever nominated to NDIL, which is a very substantive complaint when Republicans are nominating judges in their early 30s. Aside from his age, Cummings is a progressive nominee – and the upside is that he’ll be able to go senior pretty soon.

        Hunt is a bankruptcy judge who was formerly a prosecutor and an in-house lawyer at a power company. She briefly worked at an organization that helped Black and Hispanic children pursue higher education, but otherwise a very traditional candidate.

        Jenkins was a former prosecutor who is now at a big law firm. Trump probably could’ve been persuaded to nominate her as a part of blue slips.

        When the list includes a young ACLU lawyer with experience combating police violence (especially relevant in Chicago), these are uninspiring picks at best. In contrast, Trump’s nominees included a 40-year-old hard-right former Clarence Thomas clerk who is just biding her time until she gets nominated to the Seventh Circuit under the next Republican. That’s why I’m frustrated with the NDIL nominees.

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    • @shawnee68

      I as a Black man am happy & proud of Biden’s focus on adding Black woman to the circuit courts. Once all of his current nominees are confirmed, the only circuit courts without an active Black woman on it will be the 1st, 8th & 10th. That’s a great accomplishment for Black woman who far too long have been underrepresented on the courts. And I’m also know there are only a limited number of positions to go around so I’m not being unrealistic & expect a lot of Black men to be nominated, knowing there are other deserving groups such as Hispanics, LGBT, AAPI & etc. My only ask is when we do get a Black man nominated, he shouldn’t be bypassed for a floor vote by multiple nominees that came after him like Andre Mathis was. Or have multiple SJC hearings go by without him having a hearing like Wamble. I think the bare minimum would be fair.

      @livesofthelaw

      Amanda Brailsford was not on anybody’s radar on this blog that I saw. We discussed another Idaho court of appeals nominee that is her same age & was a former public defender. Brailsford wasn’t either of the 4 names that was presented by the Idaho Democrats. I have looked into her background & can’t find anything about her besides what The White House announcement said so she’s probably your traditional unconventional compromise candidate.

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      • Ok, fair enough. I think the issue with Mathis was that both (TN) in Senators opposed him and one Blacburn is on the Committee. I didn’t think it was slight for some nominees to go before him.

        I think Schumer should get credit for getting a floor vote on Mathis at the right time. Historically speaking a nominee with his background and lack of support would not be confirmed at all.

        The Whitehouse and OLC tell inform nominees how the process unfolds so I am sure Mathis knew he had to be patient,

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      • Thanks, I was struggling to place her and thought it was a case of me forgetting a previous conversation – a bit like I did with Amy Berman Jackson’s nomination. Agree that she seems like a classic uncontroversial nominee, but getting any red state district vacancies filled with non-Republicans is a bonus imo.

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  8. John Collins was implying on Twitter that they wouldn’t have to be held over and voted on again. Which seems to go counter to senate rules as I understood them, but perhaps SJC is making an exception for the ones who got multiple votes last year.

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    • The hold over is more of a courtesy, not a written rule. It’s just that it’s used on every nominee so it’s basically automatic now. But I would think this fall in the same category as Nusrat Jahan Choudhury when they tried to take a courtesy & expand on that when they tried to force her to have a second hearing. They already have one week to write the nominees written questions so that was just a request to try & stall on top of the one week for written questions & the one week hold over.

      Durbin didn’t bow to their demands for that request so I really hope he doesn’t hold over these nominees for now a second time on top of the one-month recess. The Republicans had plenty of time to write any additional questions they had. Another week will just be additional time for nothing. It’s beyond time to get these nominees to the floor so they can proceed with their careers.

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  9. @Dequan and Joe
    For anything rule-related we don’t have to think or guess. The hold over rule is indeed a rule written in black and white, not a courtesy.
    Any subject matter up for final committee vote may be held over at least once. This is at the request of any one member, or action by the Chair.
    Nominations that already had committee action but was returned to the president at sine die adjournments may NOT be held over. Again, the Chair may decide to do so anyway. And, of course, all rules give way to the power of unanimous consent. So unless Durbin wants to tank Dale Ho et al, they won’t have to be held over again. That’s why next meeting will be a lot of votes to send these re-nominees back to the full senate.

    Tim Kaine
    In other news, Tim Kaine of VA looks set to announce his retirement. He and Warner have outsmarted Biden on that first 4th circuit vacancy. (You can’t blame the senators, blame Biden for not pushing back. That’s the new theme.) How deep a bench do you think VA has? Who would *you* like to see replace him? I would like one of the Jennifers who challenged former governor Terry McAuliffe for the primary in 2021, with Jennifer Carroll Foy, who’s much younger, being my favorite of the two. For those who like this sort of identity politics, both are black. And Jennifer McClellan will be the first black woman sent to congress from VA when she wins her special election a month from tomorrow.
    But we may just end up with Abigail Spanberger or the like.

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    • Oh wow, that’s great news. So the hold over is actually written in stone but once they have been held over once, even in the prior year, they don’t have to be held over again. Sounds good to me. I’ll be waking up early Thursday to watch 9am sharp.

      As for Virginia, I’m a little surprised if Kaine does indeed retire. I know the state has had some closer then expected races (Warner’s last election had my heart beating fast past midnight) & the governors seat went Republican in 2021, but I didn’t think he was in any real danger of losing. With DC being the states neighbor, the commute can’t be too bad. Kaine was almost the Vice President just 7 years ago so I’m surprised.

      I don’t know much about the politicians in Virginia so I’ll wait to learn more. As for the judicial comment, Gavi is absolutely correct about Biden not pushing back on the senators “recommendations”. For the 4th circuit, they sent 3 names. 2 of the names were district court judges born 1960 & 1963. Now I wasn’t too upset because the third, Tony Heytens is a good pick but Biden should have forced them to give him 3 realistic choices. They only give him 2 names for district court vacancies as well.

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  10. John Collins (and others) are saying that the nominees will be held over FYI: https://twitter.com/prof_jpc/status/1616433539687514118.

    Yes Kaine/Warner tipped their hand for Heytens with the recommendations, but let’s be honest – most senators are doing that behind closed doors anyways. Do we really think Sinema mentioned anyone but Desai or Biden would’ve picked Delaney if he had other choices? I don’t care how many names the senators submit, but I care if any of those names are any good in the first place.

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  11. So it looks like we won’t be seeing confirmations until February.
    At least we won’t have to worry about a nominee being deadlocked anymore.
    On a different note, pretty clear by now there’s an issue with Jabari Wamble that we aren’t being told about as this will be the third time a chance for him to have a hearing will be passed on.
    I wonder what the issue is?

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    • We’ve established that no one on here knows.
      Not for nothing, though, Kansas senator Jerry Moran was censured earlier this week by one of his state’s district committee for his spending bill vote. I know this isn’t related to Wamble, as Wamble has been delayed since last fall, but maybe Moran will now feel chastened and come out against the nomination. This, of course, should mean nothing, as his blue slip isn’t needed.
      But yeah, we’ve discussed many times our belief that something is going on with this nomination. We just don’t know what it is yet.

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      • Anyone who dared to bring up the wamble issue was quickly labelled a troll because he didn’t worship at the feet at biden or naively and stupidly trust him, now its clear there’s an issue , people are monday morning quarterbacking.
        If my comments aren’t deleted this time by the site owner, i will repeat myself biden is a political coward and i fully expect resistance from either of the two KS senators will cause him to delay or even not renominate wamble, that’s who biden is, he values committee and getting along over strong-arming and getting results.
        In no sane world especially after the one of four years of bigots and racists nominees being confirmed by the senate without care for democratic senators opposition, under trump should opposition by bad faith GOP senators have any resonance or impact on circuit judicial nominations.
        I will repeat again my prediction is there will be no replacement to judge kanne seat this year 2023 due to biden cowardice after the two GOP senators predictably push back or if he does name someone it would be the closest thing to a right wing federalist society hack. Either of those two options are certain.
        We will soon get to february, i will raise this issue every month.

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      • @aangren

        I can’t speak for anybody else but I certainly did not call you a troll. I just disagreed with you that’s all. I’m not worried about Wamble because as I said he’s just one of about a dozen that has not been renominated from last year. If he was the only one or if it was just him, Pocan & Rodriguez then I would be worried.

        Maybe if we were talking about somebody like Dale Ho with his type of background I may be a little worried. But we are talking about a pretty traditional nominee who is the son in law of one of the longest serving members of the House who was an early Biden backer. He will be renominated, mark my words. But as I said on an earlier post I am frustrated with the over all strategy of how long it’s taking to send all of the names back to the senate. We now run the risk of Wednesday’s SJC hearing only having three nominees in it.

        And I definitely disagree with you on the 7th circuit vacancy. Not so much because your rationale is crazy but simply because of math. Even if you use the 10th circuit timeline for Wamble, the seat being vacated last Summer & still not filled by December 31st of this year just is not gonna happen. We will have a nominee by then & probably by the Summer of this year. Also I don’t expect it to be Jessica Eglin or anybody hard left but I also don’t expect it to be a right wing hack either. It will probably be somebody in the mold of another Doris Pryor, who was good on her age & had a decent background that pleased progressives while not pissing off conservatives at the same time.

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      • I never said or believe you were a troll, either. I didn’t see how doing so would be helpful in our discussions.
        Also, your intensity on judges and Dems’ generally lack of urgency is the closest to mine on this site. Most other people here have unremitting hope and optimism when it comes to Biden on judges.
        I think ever single day that goes by without a nominee for a vacancy, or every single day that goes by without a committee hearing, or every single day that goes by without a final confirmation vote, is a catastrophe. Hyperbolic, I know. Unrealistic, sure. But when I’m passionate about something, I can brook no delays, whatever the reason.
        The people who blamed the 50-50 senate had a very strong argument over the past two years. That argument is gone now.

        On Wamble, specifically, I do not think that the KS senators’ objections will kill the nominee. I use the Chad Meredith saga as example to illustrate this point. Days after Dobbs and after intense uproar, Biden was still dead set on nominating Meredith. But for the grace of Rand Paul, we’d have Meredith on the bench by now. Another example is the TN senators’ stiff objections to Andre Mathis.

        However, I do believe some issue was found with Wamble, thus delaying his re-nomination. If this issue is significant enough, I think Biden will pull the plug on it. And I think that would be absolutely warranted.

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  12. Out of the 16 Democrat appointed circuit court judges eligible for senior status this year, SEVEN are Black men. And Paul Watford wasn’t even one of the seven. I think we could see a decent number of Black men nominated over the next two years then we have seen in the past 9 years.

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  13. I fully expect Roger Gregory to take senior status once his tenure as chief judge ends.
    No way on earth is he going to let a conservative replace him.
    Should be noted that he was a notion of good will by George W so that Democrats would play nice on other nominees.
    Didn’t work out as well as W hoped but it gave us a liberal jurist so fine by me.

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    • I remember that as well. GW Bush knew with a split senate & the way his brother, Katherine Harris & SCOTUS handed him the presidency, he was gonna get unprecedented push back on judges. And that was after two years of Republicans blocking Clinton nominations in an unprecedented manner.

      Republicans didn’t allow votes in Elana Kagan to the DC Circuit, two Hispanic men in Texas ti the 5th circuit & scores more. I too expect Roger Gregory to give heavy consideration about stepping down as well. Jamar Walker should get heavy consideration if so & would be the first LGBT Black make circuit court judge if confirmed.

      @Rick

      All of the names from last year are still on Wikipedia, they are just hidden until confirmed. Same with the Tiffany Cartwright page.

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      • @Dequan

        What?!
        Please tell me about the two Hispanics that the Rs blocked from the 5th circuit. This was before my time.

        How it is that Dems don’t use this to counter GOP’s obsession with trotting out the Miguel Estrada nomination? This is why I have to agree with most of what aangren says. The GOP will do anything to win on judiciary, even pretending as if the Dems are anti-Christ for blocking a Latino from taking a circuit judgeship. Now you are telling me that the GOP did it first? Twice? And I, someone who’s heavily invested in judicial nominations, have never heard about it?
        How can a party be so ineffectual yet still manage to win elections?

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  14. I was just checking out the Wikipedia page for Biden’s nominees and noticed Casey Pitts wasn’t renominated – yet…I assume he will be, can’t imagine any controversy with him

    I hope at the SJC hearing on Thurs, GOP at least allows some of the nominees to advance….I can see some of the first time nominees held over, but nominees who already cleared the committee shouldn’t be held over again.

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    • Again, there is no need to worry with any of the nominees not be resubmitted. The Biden administration has already made clear that they will be renominated later this month. This includes the red state nominees both at the district court level (Scott Colom in MS already has verbal support from Senator Wicker) and at the circuit court level (Wamble will be confirmed in relatively short order despite the unwarranted fear from certain “progressives”).

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  15. Republicans controlled the Senate from 1994-2000 so they can and did block several of Bill Clinton’s nominees until George W “won.”
    Should be noted that under George Sr, a couple of nominees including John Roberts were blocked but nowhere near the obstruction done to Bill Clinton.
    It’s why I have an anger towards Patrick Leahy, who not only let George W nominees get up or down votes when Democrats had control but kept the blue slip rule Republicans had made clear they wouldn’t honor in place.
    Next to Mitch McConnell, no one is more responsible for the right wing courts we have then Patrick Leahy, and all because he was pining for a Senate that was long gone and not coming back.

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    • No doubt about it. Most people mention Mitch & Trump as the two people responsible for the courts we have today. I agree with Mitch but there are several people I would out ahead of Trump. Patrick Leahy is one. Grassley for getting rid of blue slips for circuit court vacancies deserves more credit as well. I would even put James Comey ahead of Trump because if it wasn’t for his unprecedented response to the Hillary investigation, she, not Trump likely would have been filling those vacancies.

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    • I think we’ve personally covered the Leahy stuff pretty ad nauseam here, but at the end of the day it is the Republicans who are at complete fault for changing the norms when they didn’t have to since it was they who had the presidency and Senate at the time it was changed. IMO, It is also pointless to look back at the 2016 election in terms of the judiciary with Clinton winning since the Republicans would still have controlled the Senate and blocked any “progressive” nominees (although the Bernie wing would’ve blamed Hillary every step of the way). Biden wouldn’t have run in 2020 and likely Hillary would have been destroyed in any event, but that is jumping way too deep in the rabbit hole.

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      • Hillary wouldn’t have thrown Obama’s pandemic response book away upon moving into The White House & likely would have handled Covid better. Plus the Republicans would have over played their hand with the majority. Trump likely would have won in 2020 if he was even halfway competent & listened to the scientist & cut out the crazy. So no reason to believe an incumbent Hillary wouldn’t have had a good shot at reelection had she been in office in my opinion.

        As for the judiciary, while we wouldn’t have gotten any ultra liberal judges (Without a deal to put a Chad Meredith type on as well), the compromise Hillary judges would have still been to the left of Trump’s judges. I would venture to say out if Trump’s 54 circuit court judges, Hillary’s would have been at least slightly to the left of 53 of them with only Mark J. Bennett as the possible exception.

        Liked by 1 person

      • Oh I should have specified had everything else gone the same & the Dems won control of the senate in 2020 then Hillary would have filled them all. The first 4 year yea you’re correct, nowhere near 54 with everything else remaining the same.

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      • @Deequan

        One reason that Jude Pate was appointed was because he is from rural southeastern Alaska and Governor Dunleavy wanted geographical diversity. The last time the Alaska Supreme Court had a judge from anywhere other than Anchorage, Fairbanks, or Juneau was in the late 1950’s.

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      • I don’t think anyone is saying every public defender is going to be a super liberal judge (Gelpi on CA1 has proven to be moderate if not conservative), but PDs are less likely to instinctively favor the prosecution in criminal cases, which most progressives would consider a win. Pate also served as counsel for an Alaskan Native tribe (I wonder if Dunleavy nominated him as a nod to Alaska Natives) and serves on the diversity committee of the court, so he’s definitely better than what a typical Republican governor would nominate. https://www.alaskasnewssource.com/2023/01/20/sitka-judge-appointed-alaska-supreme-court/?outputType=amp

        I’m a big fan of ranked-choice voting (both as a concept and for its role in helping Peltola/Murkowski win), but not sure how much this judicial selection would be due to it since Dunleavy won the AK governor’s race without much competition. Perhaps it encourages him to be more moderate in his picks rather than go for whoever Fed Soc would recommend? Either way, I’ll take it.

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      • Gustavo Gelpí also was a GW Bush appointee to the district court. That, his age (Born 1965) & there being much better options for the 1st circuit makes him a poor choice even before we see his conservative leanings. The issue is the Puerto Rican delegation pushed hard for him.

        The delegation also pushed back hard against another public defender that Biden wanted to nominate for the district court because of her stance on PR statehood. Biden gave in on both cases. And in both cases, we got worst nominees. The district court only really got 1 young progressive of the 3 nominees. The other two are in their mid 50’s & was a magistrate judge & the secretary for the court.

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  16. After Idaho, I forsee Alaska and possibly South Dakota as being the next state with two Republican senators where we’ll be seeing deals reached.
    Don’t expect flaming liberals but as long as we don’t see Chad Meredith types, it should be fine.

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    • Yea I agree. I’m actually surprised Alaska hasn’t gotten a nominee yet. I guess Sullivan is still upset Durbin didn’t grant his absolutely ridiculous request to personally meet with every 9th circuit court nominee from every other state. I can also see nominees from Indiana & North Carolina too. I think blue slips will have to be eliminated for much hope in Texas, Florida, Missouri, Arkansas & Alabama.

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      • I think you’re right about Alaska and South Dakota. There is already a recommendation in South Dakota, and she seems to not be controversial.

        I note something on North Carolina. Republicans have an 11 to 4 majority on the state Court of Appeals. Would the Biden Administration nominate one of those 11 Republicans to Federal District Court so that Roy Cooper could appoint a Democrat as a replacement?

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      • Hmmmmm… I never thought about that strategy. It would depend on several things. How moderate is the Republican judge. Also what is North Carolina law, can governor Cooper just nominate anybody without Republican confirmation? Also would the judge face a retention election? There are factors that I can see that being a good idea.

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      • @Dequan

        Something like that got done in 2005. Wisconsin’s two Democratic Senators (reluctantly) agreed to consent to appointing state Supreme Court Justice Diane Sykes to the 7th Circuit. When she took that position, Governor Jim Doyle appointed her replacement and it gave Democrats a majority on the Wisconsin Supreme Court.

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      • Oh yea I forgot about South Carolina. We already know the two recommended for that seat. Two woman, both near 60 & both fairly moderate. One Black woman & one White.

        On another note the senate is back in session today. I really wish the SJC had gaveled in session last week just to have an executive meeting so we could get some confirmations this week but we will likely have to wait until February. The SJC website has not been updated yet with the new members. It’s still showing Leahy & Sasse as members.

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    • That was my thoughts as well. And better yet I hope he envisions the same type of judges Ron Klain did. I while I haven’t agreed with all of Biden’s picks, I still give him overall an A-. I know Klain’s replacement recently dealt with the Covid pandemic response so I’m not sure where he aligns when it comes to focusing on the courts.

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    • I had the same thought when I saw the news. Zeints hasn’t really ever worked in that sphere, like Klain did, so far as I know. It would be terrible to take further steps back on this, or just take for granted that nominations and confirmations will just happen on their own.

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    • I believe Trump also appointed state SCOTUS from both Colorado & Michigan to the 10th & 6th with both having a Democrat governor & two senators. Obviously this is a little different because we are talking about a district court appointment but same concept. I don’t know anything about the NC court of appeals judges but if there was a moderate or a never Trump type, that would definitely be worth a look at.

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  17. Hey Dequan,

    What i meant other day when I said Casey Pitts wasn’t on list, this was list I was referring to.. I saw his Wikipedia page is out there still, just not on renominated list
    https://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Joe_Biden#:~:text=As%20of%20January%2017%2C%202023,the%20United%20States%20district%20courts.

    I think there are other names missing, which I think means they’ve not been officially re-nominated but will be, i assume, in short order..

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    • Oh yea I knew what you meant. I was saying on that page the names are still there but they are all hidden. Once their nominations are sent back to the senate then their names will be unhidden on the page. You can see they are hidden because if you try to edit the page, their names appear under the other names that were sent to the senate already.

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    • WOW, now that’s a shocker. I still am not worried though because Jabari Wamble is probably the least controversial option from Kansas. I’m really happy to see both Scott Winston Colom & Adrienne Jennings Noti renominated. I was worried about both of them more than Wamble. As expected no William Pocan or Jorge Rodriguez.

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  18. Hers is another one of those articles where it says Democrats will prioritize judicial nominations this Congress. https://rollcall.com/2023/01/23/democrats-renew-push-to-confirm-bidens-picks-for-federal-courts/

    Yeah, but it’s harder to do that when you’re off every Friday, now many Mondays, as well as when you leave early on Thursdays..

    Come on Sen Schumer, keep the senate in ONE Friday a month, OR stay late on a Thurs…And by late I just mean 8pm….

    Dequan will provide pizza, and I’ll provide Oreo Ice Cream along with soft drinks (or as we say in the East Coast – pop) (plenty of sugar to keep senators awake) as a reward for staying and voting – LOL

    Liked by 1 person

      • And there lies the problem. When it comes to Democrats it’s always “There will be plenty of time”. We simply don’t know that. We went from a 1 seat majority the night Warnock won to a half seat majority already with Sinema turning to an Independent.

        The Democrats are a heartbeat & Sinema hissy fit away from losing the majority. And the senate map for 2024 looks ugly. How about get the work done first & then take a month off. That’s how it’s done at every job I’ve ever step foot in.

        Liked by 1 person

      • Of course there will be plenty of time. There are dozens of nominees on executive calendar who will be back after the business meeting.

        Also, the Senate can focus on nominations because you won’t see any serous legislation coming from House or any that can be initiated in the Senate.

        My prediction is that there will only be a handful (if that) of nominees unconfirmed before the next election cycle.

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      • Schumer can’t do much if the senators just don’t show up, and good luck trying to get Manchin and Sinema to take time away from schmoozing with donors to vote on some random district judge in Idaho or wherever. The rank and file senators probably claim that they need time during the week to fundraise/do local photo ops/etc., and they also definitely think that they’re entitled to more days off than us regular people because they’re U.S. Senators. After all, haven’t you all seen the articles about how little Sinema (for one) actually works?

        https://www.thedailybeast.com/the-incredible-37-page-guide-for-staffing-sen-kyrsten-sinema

        Honestly, more people need to go from working at Demand Justice/ACS/etc to senators’ staffs – that might be the only way to get Dems to actually prioritize judges rather than just paying lip service to the idea whenever a horrible scotus decision comes down.

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      • That’s nice but Kyrsten Sinema isn’t a Democrat. When she was there she didn’t attend weekly meetings. But , as you know Sinema will have run against Ruben Gallego.

        The voters of Arizona can decide if they wish to retain her. I won’t shed any crocodile tears if Sinema is defeated in 2024. However, she has been a reliable vote for judges so far. As for Manchin, I suspect he doesn’t support Dale Ho so the extra vote will be necessary.

        There’s not one concrete thing that anyone at Demand Justice has done that has been beneficial to any nominee.In fact, I think their letters of “support” harm prospective nominees more than helping.

        I would happy to make a donation for them to stay out of confirmation process. The nominees don’t want or need it!

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      • Yes, but they don’t help nominees. What a “better” nominee is up for debate. When one of the Senator’s asked Ketanji Jackson about her knowledge of being supported by Demand Justice it reminded me of Animal House when Boon shouted to the musician “Otis my man” and Otis looked at him as if he didn’t know him.

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      • Haaaaa… That’s actually a funny analogy… Lol

        What I would say is if Demand Justice didn’t exist then the Republicans would just find some other group to attack the nominees on. Hell they might even read this blog & start saying at the SJC hearings that Harsh’s Vetting Room endorses you.

        At the end of the day the Right has their conservative groups that back their nominees & they are well organized. The Left needs to catch up & respond in kind. Demand Justice raises money. Trust me, if they weren’t an effective alternative then they wouldn’t be getting name checked every hearing. At the end of the day the unless any of the Democrat senators has a problem with them then it’s not stopping any nominee from getting to 51 votes. Let the Republicans continue to complain. They can just do so with one less senator for the next two years.

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    • @Shawnee I also can’t wait to be rid of Sinema (ideally with Gallego, but even a Republican would be less irritating because they’d be predictable), but for this Senate, the Dems need to be able to count votes – which means knowing how every Dem (or independent) will vote AND making sure they actually make it to the vote. That’s difficult when half of the Senators consider confirming judges a much lower priority than calling donors or posing for photo shoots. Nobody wants a repeat of the Freeman fiasco where they didn’t whip properly and had to do it twice.

      My overall point is that Schumer/any Dem likely has a lot less sway over when the Senate will be in session than folks on this blog think – even for the Dem senators who are actually Dems (let alone Sinema), I see no way to force them to work Fridays or get in earlier on Mondays. I do wonder if Sienna will be even more annoying (or maybe caucus with Republicans) if it looks like she’ll lose to Gallego/the Republican in 24.

      I also agree that the public facing stuff the liberal advocacy groups do is probably not that helpful – you don’t see Fed Soc tweeting in support because they already have the ear of senators behind the scenes. What I’d like to see is Demand Justice get their people on senators’ staffs or selection committees, similar to what they did in Colorado. They’re pretty new though, so I understand it’ll take a while to build Fed Soc levels of influence (not to mention Fed Soc levels of funding).

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    • Thank you. Wamble’s name not being sent to the senate yet may be had strategy but doesn’t mean there’s any reason he won’t have his name sent at a later date. Remember none of the names from last weeks batch have been submitted yet. I’m resigned to the fact that Wednesday’s SJC hearing will just be a few district court nominees.

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      • That’s an incredibly ambiguous comment about Wamble that means close to nothing. Strange blanket statement that doesn’t say anything whatsoever about whether he will be renominated or not. Moreover it implies that they feel like they have no control over the situation like John P Collins says in the replies when they actually can do whatever they want when it comes to circuit nominations. It would on brand for Democrats to be scared to death of angering Republicans though and to back down while Republicans simply do whatever the hell they want and do not care what Democrats think.

        Yes, of course they have confidence in Wamble or else they never would have nominated him in the first place. They’re intentionally not saying something.

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      • The White House said that nominees were going to resubmitted in the order that they were sent.

        The Wamble nomination is going to be tricky. It appears that both Kansas Senators are not going to fully support him.

        So, how does a nomination like that proceed when the home state Senator’s refuse to help and some instances are your key opposition.

        This is what transpired in the Mathis nomination. Marsha Blackburn was totally trashing him in the hearing and he didn’t have anyone to back him up.

        I don’t think the White House has contempt for a nomination that they created. It doesn’t make any sense. The nominee isn’t complaining why should anyone else be.

        There are plenty of issues get worked up over (rash of mass shootings) the Wamble nomination isn’t one of them.

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  19. I’m just thinking the long game….Awful senate map in 2024, not that great in 2026..In 2026 probably only Tillis (NC) is vulnerable…Maine would certainly be opportunity for win, IF Collins doesn’t run.

    During summer 2020, I thought for sure Sara Gideon was going to win the 2020 ME senate race…Also was very hopeful for Steve Bullock in MT, especially since he was a popular 2 term governor there….

    These next 2 years are critical for Democrats to fill as many Circuit and District Court seats as possible…Because in this day and age, Democrats will only be able to fill seats if they control the senate…

    Like

  20. The Senate just took the first vote of today, 60-35 to confirm some rando to Assistant Secretary of Defense… as I expected, Senators Britt, Budd, Mullin, Ricketts, Schmitt, & Vance all voted NAY. So while it’s easier for Democrats’ agenda to get 50 votes due to Fetterman, it’s actually harder to get to 60 because Blunt, Burr, & Portman were all on the reasonable side.

    Like

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