“Unconfirmed” seeks to revisit nominees who were never confirmed to lifetime appointments, to explore the factors why, and to understand the people involved.

Judicial nominations don’t always fail due to high-profile political opposition.  Sometimes, nominations fail because staffers or White House attorneys raise personal objections.  The late Illinois Senator Paul Simon (no, not that Paul Simon) includes one such nomination story in his 1999 autobiography, that of Prof. Wenona Whitfield.[1]

When Bill Clinton was elected in 1992, the federal bench in Illinois had many vacancies, including two on the U.S. District Court on the Southern District of Illinois.  To fill these vacancies, Simon created an advisory committee to choose candidates for the federal bench, alongside fellow Senator Carol Moseley-Braun.[2]  To head the Committee for the Southern District, Simon chose Hiram Lesar, the former dean of the Southern Illinois University School of Law (SIU Law).[3]  For his part, Lesar recommended one of the University’s property professors: Wenona Whitfield.

Whitfield had a long history in the legal community of Southern Illinois.  She received a B.A. from Illinois Wesleyan in 1970 and a J.D. from SIU Law in 1977.[4]  Just a few years later, Whitfield began teaching at SIU Law, teaching Property and Health Law.[5]  Having had more than a decade of teaching experience by the time Clinton came into office, Whitfield’s nomination in March of 1995 made her poised to become the first African-American judge and the first woman on the Southern District of Illinois.[6]

Whitfield’s nomination was not initially considered controversial.  The Chief Judge of the Southern District, Judge Phil Gilbert (a Republican appointed by President George H.W. Bush) strongly supported Whitfield, and her initial meetings with Republican members of the Senate Judiciary Committee went smoothly.[7]  According to Simon, then-Chairman of the Senate Judiciary Committee Orrin Hatch (R-UT) assured him that he “would do everything he could to help [Whitfield].”[8]

However, Simon notes, Hatch’s staff put the brakes on the nomination, citing the fact that Whitfield was a recovering alcoholic.[9]  Seeking to alleviate their concerns, Whitfield assured the Committee that she would resign before letting her condition affect her work on the bench.[10]  This assurance, along with Simon’s lobbying, led to Hatch giving Whitfield a hearing on July 31, 1996.[11]

Unfortunately, the hearing, already late in the 1996 Presidential election cycle, did not lead to further movement on Whitfield’s nomination.  According to Simon, Hatch indicated that he wanted to move Whitfield through the Committee, but couldn’t, due to opposition from Senate Majority Leader Trent Lott (R-MS).[12]  However, when Simon took the matter directly to Lott, he contradicted Hatch’s account, noting that both his parents were alcoholics and that, as such, he had no opposition to Whitfield.[13]  Lott promised to move Whitfield to a floor vote if she passed through Committee.[14]  Upon going back to Hatch, he reiterated his position on Whitfield, maintaining that Lott was the barrier to a final vote.[15]  Ultimately, the impasse was never settled and Whitfield was never confirmed by the Senate.

After his re-election, Clinton chose not to re-nominate Whitfield (her chances were likely hurt by Simon’s retirement).  Instead, on April 28, 1998, Clinton nominated Illinois State Judge David Herndon to fill the seat.  Herndon’s nomination moved relatively smoothly and he was unanimously confirmed on October 21, 1998.

As for what happened with Whitfield’s nomination, Simon maintains that the opposition stemmed from Hatch or more specifically, Hatch’s staff, noting:

“I sense that his staff saw a black woman and that “spelled” liberal to them.”[16]

To be fair, it remains unclear as to whether the objections to Whitfield’s personal background were pretextual.  Under Hatch’s leadership, the Senate did confirm ten African American female nominees put forward by Clinton.  However, many qualified African American women were also rejected under Hatch’s tenure, including Judge Frederica Massiah-Jackson.

As for the Southern District of Illinois, it did not receive a female or an African American judge until 2014, when Judges Nancy Rosenstengel and Staci Yandle were confirmed.

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