After the smooth confirmation that Judge Doris Pryor saw to an Indiana seat on the Seventh Circuit, the Biden Administration has tapped another Indiana magistrate judge, Judge Joshua Kolar, to fill a second seat on the Seventh Circuit.
Background
Kolar received a B.A. from Northwestern University in 1999 and a J.D. from Northwestern University Law School in 2003.
After graduating law school, Kolar joined Mayer Brown as an associate, with a year hiatus clerking for Judge Wayne Anderson on the U.S. District Court for the Northern District of Illinois. In 2007, Kolar then joined the U.S. Attorney’s Office for the Northern District of Indiana, rising to become the National Security Head in 2015 (after a year in active duty in Afghanistan).
In 2019, Kolar was appointed to be a U.S. Magistrate Judge for the U.S. District Court for the Northern District of Indiana, where he currently serves. Kolar also serves as a Lieutenant Commander for the U.S. Navy Reserve.
History of the Seat
Kolar has been nominated for an Indiana seat on the U.S. Court of Appeals for the Seventh Circuit. This seat opened upon the death of Judge Michael Stephen Kanne on June 16, 2022.
Legal Career
While Kolar started his career at the firm of Mayer Brown, he spent the most significant portion of his pre-bench career at the U.S. Attorney’s Office for the Northern District of Indiana.
While at the office, Kolar handled a number of appeals before the Seventh Circuit. See, e.g., United States v. Allday, 542 F.3d 571 (7th Cir. 2008) (affirming conviction and sentence for receiving sexually explicit images and videos of minors). For example, Kolar argued to defend sentences imposed against two codefendants in a bank robbery case. See United States v. Quintero, 618 F.3d 746 (7th Cir. 2010). The codefendants challenged the sentence they received, with one claiming that he failed to receive a guidelines reduction for acceptance of responsibility, while the other argued that her guidelines were improperly calculated. The Seventh Circuit, however, affirmed the sentences in both cases. See id. In another case that Kolar argued before the Seventh Circuit, the court affirmed the denial of the defendant’s motion for resentencing after the U.S. Supreme Court ruled that the federal sentencing guidelines were advisory. See United States v. Guyton, 636 F.3d 316 (7th Cir. 2011).
Political Activity
Kolar has a handful of political donations to his name, including two to Senate Majority Leader Richard Durbin and two to Presidential candidate John Kerry, both Democrats.
Jurisprudence & Reversals
Since 2019, Kolar has served as a U.S. Magistrate Judge for the U.S. District Court for the Northern District of Indiana. In this role, he presides over settlement, preliminary hearings, bail, and any cases where the parties consent to his jurisdiction.
Among the notable cases that Kolar has handled as a magistrate, he partially denied a motion by attorneys for former Seventh Circuit Judge Richard Posner seeking dismissal of all claims by Brian Vukadinovich, who argued that Posner owed him $170,000 for his work at the Posner Center for Justice for Pro Ses. See Jacqueline Thomsen, Court Says Former Judge Posner Should Face Some Claims in Wage Case, Reuters, June 22, 2023, https://www.reuters.com/legal/government/court-says-former-judge-posner-should-face-some-claims-wage-case-2023-06-22/.
In a notable opinion, Kolar remanded a damages claim against State Farm Insurance back to state court, noting that the defendant filed to meet the 30-day clock for removing the case to federal court. See Tedesco v. State Farm Fire and Cas. Co., 599 F. Supp. 3d 750 (N.D. Ind. 2022).
In another notable opinion, Kolar denied a motion to quash a subpoena filed for records of a psychotherapist who counseled the plaintiff, declining to answer the novel legal question of whether a psychotherapist-patient privilege existed in Indiana, but instead noting that, even if the privilege existed, it had been waived. See Doe v. Purdue Univ., Cause No. 2:17-CV-33-JPK (N.D. Ind. Jan. 11, 2021).
Overall Assessment
As of this point, Judge Kolar looks likely to share the smooth confirmation that his fellow magistrate had last year. There is little in his background that is likely to ignite opposition, and his military background is also likely to draw support. As such, it is fairly likely that Kolar will be confirmed before the end of the year.
The Vetting Room 
I am just relieved that this seat is on track to be filled. Kolar seems to be highly qualified with a commitment to public service and should be a reliable liberal vote on the 7th. I give it a solid B, and really you could talk me into going higher given who he is replacing.
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Judge Kolar seems to be well-qualified to be an appellate judge. He specialized in appeals while in the U.S. Attorney’s office. Like Doris Pryor, he seems to be a safe and conventional choice.
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*History of the Seat:
Created by 75 Stat. 80 in 1961
History of the Vacancy:
(See “History of the Seat” section of the post)
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Kolar: B
Many things in his favor, not least that with his appointment, this court will be less conservative than with Kanne.
His fairly conventional legal background prevails against his getting a higher grade.
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Military or not, I don’t expect him to get more than 5 Republican votes (the 3 + 2 IN senators), and that’s more than OK with me.
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Biden has appointed more Magistrate Judges to circuit courts than any other President:
Clinton
1. Barry Silverman (9th circuit)
G.W. Bush
1. Bobby Shepherd (8th circuit)
Obama
1. Robert Bacharach (10th circuit)
2. Patty Shwartz (3rd circuit)
Trump
1. Bridget Bade (9th circuit)
2. Joel Carson (10th circuit)
Biden
1. Doris Pryor (7th circuit)
2. Dana Douglas (5th circuit)
3. Irma Carrillo Ramirez (5th circuit)
4. Joshua Kolar (7th circuit)
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Not a stat that lends itself to boasting by the president, especially with Ramirez on his list. If Biden gets more opportunities for circuit appointments, let’s hope he’s looking elsewhere.
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@Gavi, I would hope so too. I doubt the 4th circuit will go to a Magistrate Judge and while I don’t think it’s particularly likely the 3rd circuit will, I wouldn’t completely rule it out, as there are several young(ish) Magistrate Judges that were appointed in New Jersey
since 2021.
The ones I would keep an eye on there are Jose Almonte and Andre Espinosa.
Of course I expect the nominee to be either Esther Salas or Julien Neals.
But my top two choices would be Rachel Wainer Apter and Fabiana Pierre-Louis of the New Jersey Supreme Court.
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@Ethan
I too fully expect either Esther Salas or Julien Neals to be the nominee too. But at this point if they don’t have to check the nominee out of an old folk’s home or pull; them out of speaking as the headliner of a Federalist Society retreat, I guess I will be content since Menedez & Booker are the two senators.
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I wasn’t expecting a flaming liberal for this seat but all in all, I think folks should be satisfied with Kolar as the nominee, especially given that he is replacing a very conservative judge.
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https://www.reuters.com/legal/government/judge-rosemary-pooler-2nd-circuit-dies-85-2023-08-10/
I came across that today. Crazy to think had Trump been re-elected, the 2nd Circuit would have looked wildly different. I’m sure Pooler would have tried to ride out a Trump second term, along with Peter Hall (who died a week after he took senior status in 2021), and a Trump presidency would have replaced both of them with ultra right-wing nominees. Also, if Cabranes was still going to go senior in a Trump second term, Trump would have been able to lock down that seat as well.
As for Kolar, while this will significantly shift the court, I still worry about Rovner, because while the court will go to being a functionally 7-4 conservative court to 6-5 when Kolar is confirmed, Rovner could very well go under a Republican President and wipe out the progress made on shifting the 7th Circuit so far.
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You have not mentioned Robert Katzmann, who died 9 June 2021 after he went senior at 21 January 2021at the 2nd Circuit. So at least three judges at this court would have been left by death if Trump would have been re-elected.
But it’s always idle to lament on things who happened in the past. Not to learn from them, but some people on this blog have obviously never made a wrong decision in their lifes. When Thurgood Marshall retired on the advise of his wife and his doctor, some folks from here would surely tell him, that both of them are wrong, because Clarence Thomas are coming in and he would survive until Bill Clinton will start his first term. Others would tell him, that he should have already retired under Jimmy Carter. Everything correct in the retroperspective, but decisions have consequences, no matter on what base they have been made of.
On the 7th Circuit I would disagree, that all progress would be wiped out if Rovner remains, because the court had only 2 elder Democratic appointed judges at the end of Trumps term, with both of them replaced, with the one vacancy inherited (Flaum) and the one will be filled (Kanne), the number of Democratic appointees will then have doubled. And two real flips.
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Are you considering Flaum a flip? I know he was a Reagan appointee but reading his wiki he sounded fairly moderate. It says he took senior status on November 30, 2020, during Trump’s lame duck period. How long ago did he announce his intent to go senior prior to that? I know McConnell tried to get his seat filled (along with Torruella on the First Circuit) before Trump left office, but was unable to (and Graham even held a hearing for Trump’s First Circuit pick but decided against a committee vote).
It’s kind of similar too with Gelpi replacing Torruella (a Reagan appointee), I know it’s a flip if you go by the presidential party but Torruella sounded pretty moderate by his Wiki and that any Trump appointment was going to be far more conservative.
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I would at least say, Flaum was no liberal, the timing was ideal to prevent Trump from naming his successor, was ideal here. If that was his intention, if he was not interested who will do it, or if there was another reason, we don’t know. Perhaps he was impressed by Biden’s announcement to re-balance the judiciary after the Trump years.
But ok, let’s say Flaum is just a half one, then the 7th Circuit is still the one, who had the most ideological shift when Kolar is confirmed, like the 2nd Circuit, when we count the moderate Hall and the conservative Cabrenas as full one.
At least from the point we came from, we had Diane Wood (Clinton), who was eligible for senior status, and Hamilton (Obama), who became eligible in May 2022, while Trump had appointed five judges and elevated Barrett to SCOTUS, with re-filling her seat.
If we take a look to the court now, it looks so much different, and that should not be downplayed. That’s my point. Speaking about flipping the whole court after that not very distant past is bold.
The 1st Circuit, who has a solid majority of Democratic before Torruella died and Howard went senior, is now so solified, that there is no Republican appointed judge remaining. But I also see very few ideological difference between Torruella and Gelpí, and Howard’s seat has just to be filled. Torruella was an idol, what Gelpí is not, but Puerto Rico and its population is different from the rest of the USA.
Ignoring Smith at the 3rd Circuit, who got a nice job and went senior and White at the 6th Circuit, who was originally appointed by Clinton, we are back at the 7th, where Kanne is remaining the only quite conservative judge Biden will be able to replace in this term so far, if we exclude Cabrenas.
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The 7th circuit is definitely the circuit court that Biden’s changed the most since he took office (once Kolar is confirmed). Most of the courts he is just replacing old liberals with younger liberals.
As for Flaum’s rationale, I noticed that he announced his intention to take senior status on Friday, November 6, 2020, when Biden was clearly winning but the election had yet to be called. Senate control was also undetermined. It’s possible that Flaum wanted to give Trump a chance to name his successor. Another possibility is that Flaum wanted to create a vacancy under Biden & a Republican senate to force them to compromise.
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Yes, I hope that Rovner will elect to go senior in 2024. It’s not impossible to imagine. She strikes me as someone that ignores political considerations and simply likes doing the job. But she is 85 and her considerations may be different than they were even two years ago.
Failing that, let’s hope Biden gets re elected with another senate majority.
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Had Trump won a 2nd term and GOP kept the senate in 2022, the 2nd circuit would have at least a 10-3 conservative majority (since Cabranes is a conservative) and potentially a conservative majority as large as 12-1.
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I was just thinking about judges and nominations a few minutes ago and Irma Carrillo Ramirez being 59 years old popped in my head. I’m sure she’s going to serve at least 10 years to qualify for senior status but…
There HAS to be a reason considering the Biden team picked her when they have a red state nominee like Joshua Kolar who looks to be what 12 years younger. Maybe they really liked her?
I just can’t believe they would’ve done this to flatter Ted Cruz in the hopes of a deal (without solid agreements) or didn’t want to deal with a headache of whining from Ted if they nominated a young latina for this vacancy over his objections.
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We hope that there HAS to be a reason because that’s the only way we could accept Ramirez or rationalize her selection. But that’s just for catharsis.
Occam’s razer shaves away all those complexities, leaving us with the rather simple reality that the WH isn’t that good at negotiating, as much as we hate to admit it.
Ramirez came out of the Texas senators’ commission process and the WH accepted her. Texas’s district court vacancies remain as unfilled as ever.
It sucks, but that’s the president we have, and the one that many in here would sycophantically praise regardless.
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Either way the Ramirez nomination is the worst Democrat circuit court nomination this side of Julie Carnes. If we end up getting all 8 vacancies filled before the end of next year (We won’t) with no out right Republicans, then I would say it was worth it. Even if we got 6 filled, I may say it wasn’t as bad. But we likely will get 4 or less filled & probably not with all Democrats. All of the leverage is gone once you announce Ramirez without a package deal.
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I disagree with some of the Ramirez criticism. While I certainly disappointed by her age and lack of liberal background, at least I am confident she is not a Republican in disguise and should be a consistent liberal vote on the court (whatever that is worth on the 5th)
Its a missed opportunity no doubt, but I don’t think we’ve taken a step back by any means. I give her a D for now, with the option to upgrade it if any future packages are announced on the Texas courts.
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Not really Dequan. The Senate still has to confirm her, and until that happens the Democrats could use that as leverage to get a package for the district court seats announced. I don’t believe that will happen, but it is theoretically an option.
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@Dequan is having technical difficulties replying so he asked me to see if I could reply on his behalf:
“@Joe
I don’t believe Ramirez is a closet Republican. I actually think she will be a reliable minority Democrat vote too. But there are several issues with her nomination even if that is all true.
1. Ramirez will most likely be to the right of the judge she replaces. Same for Dana Douglas. So the 5th circuit, the most conservative circuit out of all 13 (You can make a case for the 8th circuit being the most conservative), will be more conservative on the last day of Biden’s first term then it was on the first day.
2. Ramirez is older than the judge she is replacing. Much older actually. That simply never should happen.
3. Even if we get all 8 district court seats filled, there’s no way the deal will be as good as it would have been using the 5th seat as leverage.
@Frank
I simply see no way Biden or Schumer would renege on confirming a Hispanic woman. Particularly the first Hispanic woman on the 5th. It just won’t happen. Zero percent chance outside of some major issue popping up with Ramirez that was unknown before. I know some in this blog likes to present race doesn’t matter when it comes to judges but that isn’t reality.
It was easier to do it to Hector LaSalle because he was clearly conservative plus there is another Hispanic on the New York court of appeals already. But no chance on Democrats doing it to Ramirez.”-@Dequan
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There was no deal or grand bargain. biden simply was afraid to tell cruz to shove it and nominate a strong progressive to the court like trump did on several occasions to democratic senators and nominated federalist society hacks like kenneth lee , even over bidens vp objections.
There was no deal or bargain, it was biden cowardice that’s all. Nothing prevented him from telling ted cruz and cornyn who are charlatans and bad faith hacks, cruz especially, who was just recently calling judge chuktan in dc a far left judge and an extremist, yet he voted to confirm her when obama nominated her, this is someone who voted to throw away votes of states biden won with no basis and yet biden lets the bastard dictates who he cant or can nominate to the appellate bench.
I cant imagine the smug grin on the gop senators faces when biden agreed to nominate a 59 year old milquetoast centrist nominee who was nearly a decade older than her predecessor. I truly wish i live to see the day when a democratic president fights hard and pushes back against this gop charlatans. Why should ted cruz even be consulted in the first place? A vile bigot and anti civil rights zealout. Irma ramirez nomination is a disgrace
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@aangren
Now this I 100% agree with you on. There was no deal for nominating Ramirez. Even if there was, Cruz & Cornyn have no obligation to go through with the deal now that Ramirez has been nominated, had her hearing & voted out of committee.
Look, I’m a proud Democrat & a loyal Biden supporter. I look forward to supporting him for reelection. But nobody is perfect. It is imperative that we hold our leaders accountable, even leaders we like. Ramirez was simply a bad nomination for any number of reasons. There’s just no way around it. Saying things like she may retire in 10 years under a Democrat or she still will vote with the Democrats just tries to mask how bad of a nomination she was. In my opinion the worst by a Democrat since Julie Carnes.
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Very frustrating looking back to see Ann Claire Williams go senior, had she stayed on three more years, the 7th Circuit would’ve flipped. I believe she is the only Clinton appointee that went senior under Trump who wasn’t conservative
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She was originally put on the courts under Reagan though so while she might not have been a conservative, it’s likely she was a Republican and thus retired under one.
Sucks.
As for the 2nd Circuit, it’s scary to think that it would be on par with the 5th, 6th or 8th Circuit in terms of how conservative it would be if Trump had won a second term, it truly is.
Glad that didn’t happen.
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Testing testing
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People have to remember until 2018, all these circuit judges had to get home senator approval so it’s plenty possible the Bush ones from a blue state and the Obama ones from a red state were really no different than what we get from District nominees.
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In 10 to 20 years from now when examining the biden likely 1term presidency, his pick of merrick garland will show to be the worst of the bunch and to emphasize biden cowardice. He picked a milquetoast moderate judge with a pro prosecution bias, because lindsay graham and other republicans were going to throw a fit if he picked sally yates.
Now garland has appointed weiss special counsel with no basis for that only simply to appease the right wing who will never be happy.
When republicans are in office they pick partisans like jeff sessions, barr, gonzalez to run the DOJ and the gop senate goes along with it, but when democrats are in office their number one priority is to choose an AG who republicans wouldn’t dislike or hate and can get along with. The only reason merrick garland is AG is because biden cowardly fear of pissing off republicans.
MG should never have been attorney general, i will say that is the worst mistake of biden entire tenure.
His cowardice has turned this into hillary 2.0 email scandal which i fear will cost him deeply in the election 2024
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I don’t think that was the only reason for picking Garland for AG at all. I think Biden wanted to open up a spot on the DC circuit so he could elevate KBJ as well. He couldn’t have foreseen three additional vacancies at the time. Plus I don’t think Sally Yates was the next pick even if Garland wasn’t selected. I think Doug Jones was more likely to be the plan b pick.
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The primary determinant for biden was who could he pick to appease republicans or that republicans would accept? When trump was president he picked partisan bigot jeff sessions and then bill bar to run the DOJ, clearly biased individuals yet not a peep from the right and the GOP senators. Same for Bush , gonzalez and aschroft were well known republicans and conservative.
When this issue becomes october surprise as it was for hillary ala james comey biden will have no one to blame but himself. Any other AG that wasnt a pondering milquetoast pro prosecution judge wouldnt make this special counsel announcement yet here we are, garland has bent over backwards to show impartiality while damaging the president.
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I don’t think anyone who isn’t a committed Republican is going to care about the Hunter Biden stuff come 2024.
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I disagree. As someone who would consider voting for Biden (but not Trump), the result of the investigation would definitely determine whether I would pull the trigger for him or not.
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Ok I don’t think Ramirez is a great nominee by any means (and certainly a missed opportunity), but the dramatics here are getting a little absurd – people seem to be forgetting that Costa was also an AUSA/Biglaw partner, and one who clerked for archconservatives like Randolph and Rehnquist at that. Costa wasn’t some super progressive either, just a ruler center-left judge whose sanity stands out on a court full of clowns. Unless the admin really messed up in vetting, my guess is that Ramirez will be similar.
And just as importantly, this is the 5th Circuit – Ramirez is going to end up dissenting on any issues of importance anyways (or the en band court will reverse her if she’s lucky enough to be on a panel with a sane majority). Even the persuadable Republican appointees on the court are going to be skeptical of a new judge with a civil rights/clearly progressive background, but there’s a good chance they will be more receptive to a similar argument coming from a former prosecutor and judge like Ramirez.
Contrast this with CADC, where there’s a Dem majority, and thus Pan/Child’s’ centrism will actually have an impact when they’re writing the majority opinions. For example, Pan’s concurrence in this Fourth Amendment case (a concurrence that could’ve easily come from former AUSA Costa on CA5, by the way) shows that she takes a more limited view of its protections than Srinivasan and Wilkins: https://www.cadc.uscourts.gov/internet/opinions.nsf/36FD285BD8C6C7EA852589FE0051C469/$file/22-3017-2010451.pdf. If not for the makeup of the panel, her limited (and flawed, as Srinivasan points out) view would’ve become binding law in CADC.
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@Joe
You fascinate me! Literally there’s nothing you think is ever as bad as it is, huh?
Jesus, you give her a D but don’t think she’s as bad as everyone says she is? You know there’s only one full grade lower than a D, right?
The Ramirez nomination has been well picked over and over by now, but to argue that because she’s likely a moderate makes it worthy while also being a disappointing missed opportunity is quite the cognitive dissonance. Like, which is it? Pick one.
@aagren
I agree re: Garland.
His whole judicial career is a comedy of errors:
1997: It started here when Clinton replaces Abner Mikva with Garland. This seat was for the infamous Peter Edelman. Clinton had no backbone for judicial fights so he made the Republican SJC chair Hatch prevail on him to pass over Edelman and go with the bland choice. The senate was Republican but that didn’t mean that an Edelman nomination would be automatically blocked.
2016: Blinded by wishful thinking (Hey, Joe!), Obama naively deluded himself into thinking that there’s no way Mitch would block such a bland nominee.
Scalia dropping dead on the same day as a Republican presidential primary debate, allowing the candidates to publicly take a hard line against filling the seat;
Mitch breaking off his fun-in-the-sun-and-sand vacation to sternly tell Obama that he will not fill the seat;
the Republican grief for the dead Scalia and their hardened consensus against Obama filling that seat–
All this and more couldn’t stop Obama from laboring under his wild optimism.
So instead of a candidate to excite the Democratic base (insert Frank’s comment here) and probably win some who’d want a liberal SCOTUS majority more than they hate Hillary, Obama picks Garland, a nominee as exciting as a liver spot on a naked mole-rat.
2021: In what would be a theme of his administration, Biden seeking to right the wrongs of Republicans’ stonewalling of Obama nominees, giving us Garland as AG. A terrible terrible choice.
I can be persuaded by Dequan’s argument that Biden needed the DC circuit vacancy. But this argument is undermined by the fact that Tatel was absolutely expected to assume senior status once Dems were in charge. And he did so in early February 2021.
This is why when it comes to judicial selection I insist on getting it right the first time, to also mitigate against terrible unforeseen circumstances down the road. Garland is the best example of that.
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@Gavi
I agree Tatel was likely to go senior under Biden even without hindsight. But there was no guarantee as to when he would do that. Had KBJ been a district court judge for a SCOTUS vacancy, that could have put more pressure on Biden to acquiesce to Clyburn for Childs to replace Bryer. I can imagine part of the reason Biden gave to Clyburn for him picking KBJ was that she was a circuit court judge on the second highest court in the land. Again, I’m not saying that’s an excuse you are me would have needed to soundly reject Childs, I’m saying that’s what Biden might have used.
On a completely separate note, when is Dale Ho going to receive his commission? He will be Biden’s longest nominee to wait for it after confirmation. I know it doesn’t matter as long as he receives it before noon January 20, 2025, but I’m ready to celebrate… Lol
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Yeah, he’s really taking his time. And Natasha Merle. They must be wrapping up a ton of work.
Why noon January 20, 2025? The resolution of confirmation doesn’t expire.
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No disagreement about Garland, though also no surprised that Biden picked him – both are the epitome of the establishment, and anyone thinking Biden was going to pick some liberal champion just fundamentally misunderstands what Biden’s whole schtick is.
On Ramirez, the CA5 context is not that hard to understand. Someone can be disappointed that we didn’t get a Berzon or a Betty Fletcher who will pen fierce dissents to the ridiculous nonsense coming out of CA5, but also realize that dissents are just that: dissents. The silver lining of nominating a moderate is that hopefully they’ll sway some colleagues that a Rikelman or Abudu would have a harder time doing—it’s not a sure thing, and reasonable people can disagree about whether it outweighs a missed opportunity to have a “Great Dissenter.”
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Well I was just using that date as a worst-case scenario. Of course, I hope Biden will be re-elected but worst case I would want all commissions signed by then. A Republican president can refuse to sign the commission once in office.
Now here’s a question I don’t know the answer too. Let’s say Trump was elected in 2025 (God help us all) & refused to sign Dale Ho’s commission. If a Democrat was elected in 2028, could he then sign Ho’s commission in 2029 once sworn in or does the confirmation ripen after a certain time?
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@Hank
Yea I totally agree reasonable people can disagree on being able to sway conservatives versus just writing fire breathing liberal dissents. While I have disagreements with some on the blog as to what I would rather, those aren’t my biggest Ramirez complaints.
My biggest complaint is there are 8 district court vacancies & now we have to hope Cruz & Cornyn plays nice with filling them. Had Biden threatened to nominate Rochelle Garza or Lee Merritt if they don’t fill them, he could have used Ramirez as a peace offering get them filled.
And my second biggest issue is age. You have to look no further than the fifth circuit itself to see Edith Jones still writing fiery conservative opinions. She was put on the court at 36 years old. The exact same day she received her commission, so did Frank Easterbook on the 7th. He is showing no signs of slowing down either.
I can guarantee you 38 years from now Ramirez won’t still be on the court. She won’t be on the court 28 years from now. Guess what, 18 years from now isn’t looking too good either. Republicans have mastered playing the long game which is why the courts are the way they are today to their credit.
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Dequan
I don’t know what you mean by the confirmation ripening. But yes, a new Dem president could sign the commission IF Trump doesn’t make another nomination, a Republican senate confirms it, and Trump signs it.
If Dale Ho is the only confirmed nominee for that seat, any president can sign Ho’s commission anytime before his death.
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Ah ok got it. I don’t know if ripen was the correct verbiage, but I basically was asking if for some reason Biden didn’t sign his commission, Trump got elected next year but a Democrat president got elected 4 years later, would the future Democrat be able to still sign the commission.
But you answered my question. There’s no way Trump wouldn’t nominate somebody within those 4 years so the only way to keep Dale Ho’s confirmation active is if Democrats controlled the senate all 4 years & blocked every nomination. There are so many senate rules I can’t keep up… Haaaaa
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As long as Ramirez gets replaced by a Dem nominee, I don’t care if she’s on the bench for 36 or 18 or even just the 10 year minimum. The main benefit of youth is that the judge can choose when to go senior and the vacancy won’t be because of illness or health issues. The main thing is to make sure Ramirez not so moderate that she would actually go senior under a Republican – even though her background lacks any clear progressive markers, the fact that she was nominated for the district court under Obama but not Trump is a good sign in that regard. If I end up being wrong and she turns out to be a Callahan or a Lagoa, then my fault for being too optimistic on her.
Also, on circuits where Dem nominees actually make a difference (AKA not CA5), I’d rather see an older moderate than can be replaced sooner than someone who’s going to be preventing the law from moving in a fairer and more humane direction for the next 30 years.
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Gavi, I think she was a poor pick based on her age and lack of progressive background. But I don’t think it is nearly the catastrophe that many here seem to think it is (unless I’m horribly misreading the room).
In other words are I think it’ll be OK. And she may surprise us. Costa, as others have pointed out, was an uninspiring pick at the time but everyone seems to like him now.
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@Dequan:
I’m sorry, but your vision of filling the courts with liberal Edith Jones clones is horrible for me.
That would mean everything is static, there are always the same people sitting around and making the same decisions, and it will look like the Democratic Caucus in the US Senate.
That should be the exception, as I also know, nobody here likes to see Clarence Thomas sitting at SCOTUS for more than 30 years with no end in sight.
Jones is there a little longer, but they have equal ages.
And it would also limit the chances of the appointing new judges. We see here often dismay when lifetime appointed judges won’t like to leave, like Clay or Nelson Moore, on the other they mustn’t do under a GOP President. But that doesn’t work just in one direction.
Then we have just flips in the case of death, illness or good job offers as we can already see it on the appellate level. If that trend also reaches the district level, stallment will solidify, and there is no discussion necessary about abolishing blue slips.
And if Ramirez just remains the mandatory ten years, that would offer the chance to replace her timely.
And finally: There are many reasons to dislike special Republicans, but I doubt, that Coryn and Cruz will start crying and buckling in the case you threaten of nominating a Texan Dale Ho to the 5th Circuit.
They are both for too long in that business.
And they know the WH wants to fill the district court vacancies.
I’m also not happy about how the matter is handled, but I think they both know, that the WH won’t let them block that vast number of district court positions, who are all judicial emergencies in a big and important state like Texas. They will try to slow down the process to keep some vacancies open for a possible GOP President, I’m sure, but that is normal.
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Just for some more context on the Garland nomination to AG, he was Biden’s last announce cabinet pick during whatever transition he had after the election. If I remember his announcement of Garland didn’t come until after the Georgia runoffs (and most if not all of his other cabinet picks were well before then), when it was clear that Biden was going to be able to take office with a Democratic Senate, where he knew he’d be able to fill Garland’s DC Circuit seat. Had Republicans held the Senate I’m sure he would’ve gone someone like Doug Jones and not voluntarily opened up Garland’s DC Circuit seat so that Mitch McConnell could hold it open for 4-8 years for a Republican president to fill it.
Which kind of off-topic, but the part above is why I get annoyed when some people suggest Raphael Warnock be part of a non-Biden 2024 ticket (if Biden decided not to run), or even 2028. Sure, let’s cough up his Senate seat to Brian Kemp so he could fill it with a Republican after so much work was put into not only flipping that seat in 2021, but having to defend it for a full 6-year term last year during a Democratic president’s midterm election, where four elections have been run in two years for that seat. Any election for Warnock’s seat would include a Republican incumbent running in a special and then if it goes to a runoff, having to win that just to serve out the term on that seat (2028).
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@Thomas
I wrote a reply to you but it didn’t post & I didn’t copy/paste it. I’m not sure what’s up with this particular post but some of mine are not saving so I guess it will eventually post.
@Tim
Warnock having so many elections in a short number of years was exhausting. I had not heard the suggestion that he should run on a national ticket anytime soon (Although I have heard down the line in the future). I am not familiar with Georgia law but if he is allowed to run for both the senate & simultaneously president/vice president, then I would have no problem with him doing both in 2028 or 2032. But if Georgia law does not allow that then I would hope Georgia is a little more blueish-purple by the time he makes that decision.
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The Warnock 2024 (and 2028) hypothetical was largely something entertained by election nerds on Twitter (you couldn’t pay me $44 billion to call it X), which I know, spending time on that same site has the same health risks as smoking nowadays. But still, I’m reading some of their posts like “Seriously? You can’t be this short-sighted.”
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Oh Twitter. I wouldn’t have even responded if I knew that’s where you saw it… Haaaaaaa
But now that you have me on the subject, I’m happy we give Georgia a breather next year. They have saved the nation two straight elections, so they deserve a break. 2026 will be a blockbuster midterm for Georgia with Ossoff & an incumbent governor term limited. Let hope they turn out next year & can deliver a win for Biden again in the meantime.
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Speaking of Georgia, if Democrats are able to hold the Senate in 2024 somehow, they’d be in decent shape to hold it in 2026 even in a Biden midterm. Ossoff would be the only real vulnerable Democrat up, the only other concerning seats I’d think would be Gary Peters in Michigan and New Hampshire if Shaheen retires. Democrats do have some pickup opportunities in 2026, depending on what Susan Collins does and I’m sure they’d like to take another crack at Tillis in North Carolina.
If 2026 was a Republican President’s midterm, maybe they take a crack at Sullivan (Alaska) and Cornyn (Texas)?
I realized we’ve now had three Presidents in a row where their party controlled the Senate (or will control it) the entirety of their first term. For an 8-year presidency, that would be JFK/LBJ if you combine their time together, if not, you’d have to go back to FDR (and of course their majorities were crawling with southern Democrats that made their presidencies pretty difficult).
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Anyways at this point whats done is done, at the end of the day i want democrats to win i just fear biden choosing garland would come back to bite him, comer, mccarthy and other republicans are already saying it is proof of a coverup and corruption.
Count me in the minority but i would be pleased to see esther salas get the 3rd circuit vacancy even above any other black man, i am a black man who has criticized biden due to his lack of appellate black male nominees, but salas has been through so much, i admire her strength and dignity so much and believe she will be a solid liberal on the court, you can argue even more left than former judge greenway.
For the 1st circuit, just nominate judge samantha elliot and get it over with.
One thing that worries me is filling the open vacancies the district court judges leave upon their elevation, for example sarah merriam seat in conneticut is still open, no nominee has been named for ana de alba seat on ND cal. We shouldn’t be creating backlogs as we try to fill appellate vacancies.
Let me say this if biden wins re election and has a chance to replace alito or thomas, the latter especially, it would in my opinion make him the best democratic president bar none since FDR. Nothing , i mean nothing would give me more joy politically than to watch a judge brad garcia or judge alison nathan replace thomas, someone who has actively worked to undermine black peoples progress and civil rights/liberties, GOP replacing thurgood marshall a civil rights hero with thomas will forever be the biggest insult to black america. Just imagine the faces of carrie severino, hugh hewitt and other conservatives when they realize their favorite token is being replaced by an LGBTQ judge ala alison nathan or an arianna freeman, the thought alone is exhilarating. all just dreams now and wishes but this is why biden re election is so important and why i am mad he chose a pondering judge as AG whose special counsel appointment of weiss has the ability to seriously damage biden politically.
I genuinely feel no way thomas and alito remain on the bench throughout biden second tenure. Alito is 73, thomas is 75.
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Definitely disagree about Salas. As I’ve said many times, a whole third of the government should be just as important as the other two thirds. Selection based on personal stories is extremely short sighted. I’m a meritocrat to my bone and beyond, so I want only the best, most qualified choice possible. Tragedies, racial identities, and such are not achievements, no matter how terrible or compelling they are.
Also 100% disagree about Thomas and Alito not being able to serve through a second Biden term. Biden himself would still be years older than either man, so what does that mean for him? And RBG, a 3 time cancer survivor, served until 87. The fact is, we just cannot plan by death, since death’s the only possible way either man would leave the bench while a Dem is president.
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Thats a very fair point gavi on being strictly merit based and leaving emotions aside, but we are not robots, esther salas is 54 years old and is liberal and so i wont be throwing fits if she is the selection, she is certainly no irma ramirez not even close to that!
True as well, i guess with a biden second term there might be better chances to further moderate the far right wing circuit courts especially the 5th and the district benches on some red states, its harder to block/blue slip nominees for 8 years especially if democrats have the senate.
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I agree with choosing candidates based solely on qualifications and not trying to meet quotas. While Salas should never have had to go through what she did, it doesn’t mean she should automatically get the 3rd circuit opening because of it.
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I’m sorry, but there is no world in which Salas is not qualified for the job. A long career as an AFPD and over a decade on the district court makes her as qualified as anyone, and does anyone really expect Booker and Menendez of all people to recommend a young progressive? Other than Wainer Apter, I don’t see any plausible candidates who have a more progressive background, and I’d rather have a slightly older liberal than a young moderate who will occasionally side with the Fed Soc hacks for decades.
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On a sad note, given what’s going on in Hawaii, one has to wonder how much the Hawaii Senators will be gone when sessions resume.
Might delay things again.
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Yes very sad situation in Hawaii. Rest in peace to all that have perished. I don’t think it will have much of an affect on the senators attendance however. There is still three weeks left in the recess & they don’t even come back until the Tuesday the week they return.
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I remember a month or so ago (I think the week Bloomekatz was confirmed) having similar concerns for Welch and Bernie (the Vermont Senators), due to the pretty bad flooding that hit the state that month. I live in Massachusetts so it was a pretty big story around here, I believe they did miss some time that week (on several votes that week they were the only non-voters if I remember) but were back at the end of the week for the Bloomekatz vote. I think they both came back late in the day for that Equal Opportunity nominee which ended up being a 50-50 vote and needing Kamala for a tiebreaking vote, so kind of similar to Abudu’s cloture vote where we all waited in suspense until 8PM for Coons and Menendez to get back to Washington.
If the Senate were in session this month, I’m sure both Schatz and Hirono would be back home, but I’d bank on both of them being back in the next few weeks.
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The last note for Hawaii for now but I have to wonder if the nominee for soon to be senior status judge John Seabright will be announced in the next batch of nominees.
I’m assuming that it is still Claire Connor’s nomination to lose.
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I too fully expect Claire Connors to get one of the two Hawaii vacancies. The other will likely go to somebody AAPI (Yes @Gavi there will be ethnicity considered with half the court seats vacant… Lol).
The real excitement may actually end up being who replaced Connors. After Hirono tanking Tennessee’s US Attorney, I expect Blackburn to go full Andre Mathis rap sheet on whoever the next nominee for US Attorney is for Hawaii as payback. Maybe she will put a hold on the nominee like she did all New York judicial nominees… Haaaaaaa
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Would love to see a nominee for the 3rd & 4th Circ. in the next batch, with maybe the three noms for the Southern District of FL. Maybe a nom for the remaining open seat in LA? I think the White House should be maxing out the batches with 6 nominees at a time going forward.
Also, I would have nominee ready to go for the Federal Circuit. With Newman and others over the age of 80, we could have a vacancy open up at any point.
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@Dequan is having issues posting again so I am once again posting on his behalf:
“I must agree with everything @Gavi said with the exception of the two words “ racial identities”. Esther Salas is more than qualified & would probably be to the left of her replacement which is good. But her only being 11 years younger then her replacement who spent more then 11 years on the bench means Biden would be nominating her at an older age then her predecessor was nominated. We need to be moving in the opposite direction. Plus New Jersey had no shortage of young progressives. I expect she will be the nominee if not Julian Neals, however she’s not even in the top five of your looking for what I want in circuit court judges which is young progressives.
I also see no reason why both Thomas and Alito wouldn’t be able to serve out a second Biden term. Nothing I’ve seen shows me any signs of either of them slowing down. Even if they did start to slow down in the next year or two, I doubt they would have the same level of integrity as Thurgood Marshall had. I would fully expect them to have to have six feet of dirt on top of them to leave the bench under a Democrat president. Even then they would probably try to argue they are still not leaving.
I’m regards to the 1st vacancy, three names were rumored & surprisingly none of them were Samantha Elliott. First there was another sitting district court judge, Landya B. McCafferty. Thankfully she took her name out of contention. With her being born in 1962, she would have been amongst the worst Biden circuit court picks just based on that alone.
Then we had two woman rumored to be in contention for the vacancy. Both would easily be better picks than Michael Delaney.
First we had Pamela Phelan (born c. 1967). She would be good with her disability rights background & her being the Senior Associate Appellate Defender, New Hampshire Public Defender. My only knock against her is her age which is two years older than Delaney. I’d give her an A-
The second person rumored was Sarah Mattson Dustin (born c. 1975). She is the same age as Samantha Elliott & we wouldn’t need to backfill any district court seat for her. She’s the former Policy Director, New Hampshire Women’s Foundation & the Executive Director, New Hampshire Legal Assistance. She would be a solid pick. I give her an A & not too far off rom an A+.”
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So do we need new nominees from the WH this week if there is to be a 2nd SJC Nominations hearing in Sept ?
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Rick, we need another batch by August 23 (for a potential Sept 20 hearing).
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With all the talk earlier today about Feinstein, McConnell, Thomas/Alito living through a second Biden term & others, can we take a moment out to be thankful president Jimmy Carter is still with us. He was put in hospice earlier this year yet he is still alive. He’s had an amazing life & I’m thankful he’s still with us.
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Looks like a good article but it’s a paywall..
https://politicalwire.com/2023/08/14/white-house-steps-up-judicial-confirmation-efforts/
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@Rick
Great article. I think Phil Brest is hung over for saying this in the article… Haaaaaaa
“ Phil Brest, the White House senior counsel in charge of nominations, said he expected the Senate to confirm at least as many judges by the end of Biden’s term as the 234 confirmed during Trump’s presidency.‘
@Mitch
We posted the South Dakota article previously on the blog. I hope with two vacancies, they will be able to work out a deal.
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This is my favorite part of the article…
“Brest, the White House lawyer leading work on nominations, said he expects more district court nominees in states with at least one Republican senator to be included in upcoming rounds of nominations.”
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I agree Dequan. Made it sound like there are multiple candidates ready to be announced. Excellent news
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I found an article from June about the vacancy from South Dakota. Veronica Duffy is being vetted.
https://rapidcityjournal.com/federal-judge-vacancies-come-amid-heavy-caseloads/article_e6fe9b24-0948-11ee-bfbd-9f855cbbbcec.html
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Natascha Merle received her commission Friday, only Dale Ho remains as only confirmed nominee without commission
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Hopefully whoever will be taking over for Dale Ho once he receives his commission is young & will consider a federal judgeship themselves in the future. I’m still glowing & excited for Ho’s confirmation. I definitely will be happy once he takes his seat on the bench.
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U.S district judge lindsay jenkins just had her investiture and she was sworn in by circuit judge john z lee who she was replacing after his elevation, he made a remark that he was so impressed with lindsay jenkins when she argued a case before him as a district judge that he thought ”this woman is going places” little did he know she would literally take his seat.
Here is the video about close to 4 minutes long of her taking the oath of office, you can see judge solomon oliver jr district judge of ohio who she clerked for was in attendance as well. It was a very nice moment, the link also has several other pics of the investiture if anyone is interested as well.
Jenkins strikes me as someone who is likely to get elevated quickly if there are further vacancies on the 7th
https://web.facebook.com/667697153/videos/pcb.10161084544002154/641989064566687
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Thank you for sharing the link to the swearing in. While I was hoping for different picks in both cases, I wish both judges Lee & Lindsay prosperous careers. The NDIL has a number of Black woman on it but seeing the actual visual really brings it to light.
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@aagren
I nerd out on these, so thanks for sharing and please continue to share these investitures. I’m terrible at keeping track of appointees post-confirmation.
I won’t pretend that I wanted Jenkins for this seat, I didn’t, and I am not a racist so her color doesn’t matter to me. But I like seeing these ceremonies regardless.
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