Obama Nominees Caught Between Judicial Dreams, Practice Realities

Original story: law.com

A plaintiffs lawyer in Honolulu. A civil litigator in Dallas. An attorney defending med-mal cases in Buffalo.

They’re among the Barack Obama judicial nominees twisting in the wind as the Senate starts its summer recess and the months tick down to the November election. If history is a guide, the Senate won’t vote on most of the 49 federal district and appeals court nominees pending at the start of the summer recess on July 15. Even a Los Angeles personal injury lawyer would like to be considered for this honor.

The uncertainty can be especially difficult to navigate for nominees in private practice. Unlike government lawyers and state or federal magistrate judges, firm attorneys face demands to bring in business and revenue. Winding down work in anticipation of a judgeship can have long-lasting financial consequences if the nomination fails.

“It’s hard because your clients think you’re leaving, and your partners think you’re leaving, and everybody thinks you’re leaving, and you don’t know whether you’re leaving,” said Carolyn Short, a partner at Reed Smith in Philadelphia nominated twice by George W. Bush to the U.S. District Court for the Eastern District of Pennsylvania and returned without a vote in January 2009.

During Bush and Bill Clinton’s last full years in office, the majority of nominees pending by the summer recess never got a vote.

Although the situation isn’t completely hopeless—after the summer recesses in 2000 and 2008, the Senate did confirm a small number of judges—the odds of confirmation at this juncture are increasingly slim. As is true now, the Senate was controlled in those election years by a different party than the president.



A few unsuccessful nominees were renominated by another president. The chances of renomination are potentially higher for Obama nominees if Hillary Clinton takes the White House, but there’s no guarantee. (Of the 16 judicial nominees returned at the end of President Ronald Reagan’s last full year in office, seven were renominated by President George H.W. Bush.)

Republicans and Democrats accuse each other of unfairly playing politics with district and circuit court vacancies. Republicans point out that more Obama nominees have been confirmed to date than in the entirety of George W. Bush’s presidency. Democrats point out the higher number of judicial vacancies and the Senate’s slower pace on nominees during Obama’s final two years in office.

“It’s a shame that the federal judiciary has become a political football like it has,” said J. Richard Barry, managing partner of Barry, Thaggard, May and Bailey in Meridian, Mississippi, who was nominated to the U.S. District Court for the Southern District of Mississippi in July 2008 and returned without a vote in January 2009.

 By the numbers

In 2000, there were 38 federal district and circuit court nominees pending at the start of the summer recess and 62 vacancies, according to federal judiciary records. At the same juncture in 2008, there were 37 nominees pending and 41 vacant judgeships.

As of July 15, there were 49 nominees for 80 vacancies. Twenty-six of those nominees have had a hearing before the Senate Judiciary Committee, and 20 have been sent to the full Senate for a vote. Those numbers don’t cover the U.S. Supreme Court, U.S. Court of International Trade and U.S. Court of Federal Claims—eight nominees are pending for nine vacancies on those courts.



There are 29 vacancies that the federal judiciary considers “judicial emergencies,” due to heavy caseloads in those districts. Nominees are pending for 19 of those seats.

The Senate historically has slowed action on judicial nominees leading up to a presidential election. Senators cite the “Thurmond Rule”—an unofficial policy attributed to the late South Carolina senator and former Judiciary Committee chairman Strom Thurmond—which dictates that the Senate shouldn’t act on judicial nominees in the run-up to a presidential election.

Russell Wheeler, a visiting fellow at the Brookings Institution who tracks nominations, said the “rule” recognizes that senators from the opposition party want to leave judgeships open for the next president, in the hopes that he or she is from their party.

There are also practical considerations, he said, since the Senate has a crush of business to handle at the end of a presidency and members are away from Washington more than usual leading up to November.

But the Thurmond Rule isn’t firmly applied, Wheeler said, noting that judges were confirmed after the summer recesses in 2000 and 2008, and not always in the order they were nominated.

“It’s not just a matter of getting in line, it’s some deals between senators and the White House,” Wheeler said. Given the bitter politics surrounding nominees this year, though, he said he expected that if there are any post-recess confirmations, the number will be “pretty paltry.”

‘Emotional roller coaster’

Former unsuccessful nominees said they did not envy the current crop.

“It’s an emotional roller coaster,” said Shalom Stone, a partner at Brown Moskowitz & Kallen in Summit, New Jersey, who was nominated to the U.S. Court of Appeals for the Third Circuit in July 2007 and returned without a vote in January 2009. “You’re constantly running through the range of emotions, where somebody says, ‘Oh, they’re going to have a hearing,’ ‘No, they’re not going to have a hearing.’ ”

The pending nominees include 34 prosecutors, state judges, federal magistrate judges or other government employees. Two are law professors. Thirteen are private-practice lawyers at law firms that include two of the largest firms in the nation—Hogan Lovells, in the Denver office, and Perkins Coie, in the Seattle office—as well as small and midsize firms from Los Angeles to Boston.



The private-practice nominees declined or did not respond to interview requests.

Former nominees said that by the time the Senate went into summer recess before the presidential election, they knew their chances of confirmation were low. But a vote was still possible before the end of the year, so they waited, sometimes with professional consequences.

Fredric Woocher, a partner at Strumwasser & Woocher in Los Angeles, was nominated in May 1999 to the U.S. District Court for the Central District of California. He had a confirmation hearing in November 1999. Woocher, who has a background in election law, said he stayed away from politically sensitive cases that might create problems for him in the Republican-controlled Senate.

After the November presidential election in 2000, that caution meant he turned down an opportunity to work on Bush v. Gore. Officials at the White House and the Justice Department warned him that getting involved could jeopardize his nomination, he said.

“I was probably one of three or four people in the country who knew what a hanging chad was … and then the scenario and the case of a lifetime comes up,” Woocher said. “It was very frustrating, needless to say.”

Financial sacrifice

There can also be financial considerations, particularly for lawyers at small firms with fewer partners and resources.

Richard Honaker, who has a solo practice in Rock Springs, Wyoming, was nominated in March 2007 to the state’s federal district court. He had a hearing in February 2008. During the year and a half that his nomination was pending, he turned away new cases, didn’t renew advertising contracts and wound down his practice.

“In hindsight it seems it was not prudent to do that,” said Honaker, a personal injury lawyer. “It turned out to be a very major financial sacrifice to volunteer for public service.”

Honaker’s nomination was returned without a vote in January 2009. Lacking new cases in the pipeline, Honaker estimates that in 2009 and 2010, he earned about a quarter of the income he normally did. It took five years to fully rebuild his practice, he said.

Lawyers at firms large and small reported varying degrees of strain on their practice while their nominations were pending. Some saw little effect, but said the waiting and the work associated with being a nominee was still stressful.

U.S. District Judge John Tharp Jr. was a partner at Mayer Brown in Chicago when George W. Bush nominated him in July 2008 to the U.S. District Court for the Northern District of Illinois. Given the timing, he said he wasn’t optimistic, so he didn’t make changes to his practice. His instincts were right—his nomination was sent back in January 2009.

In November 2011, Obama nominated him to the same court. This time his hopes were higher, absent the “baggage of time,” he said. He said his law firm was large enough that he didn’t have to worry about winding down business until late in the process. He was confirmed in May 2012.

“There were always going to be any number of partners who could step in and take my place,” Tharp said. “That was quite a luxury that people at small firms just don’t have.”

Some former nominees said they grappled with fears that the failure to get a vote would hurt their reputation among colleagues and potential clients.

“In the final analysis the nominee has to know that it’s a political process, it’s not a merit process,” Honaker said. “As along as you understand that, you can live with the result.”