Lower federal court lemonade

You have to hand it to Chuck Schumer, the effervescent Senate Majority Leader, who simultaneously manages to be the consummate happy warrior and the Grinch stealing both Christmas and Hanukkah. On Dec. 14, just when his Senate colleagues were eagerly anticipating Schumer’s announcement that the holiday recess would begin — transfixed by the intoxicating aroma of jet fumes and the tantalizing prospect of a lengthy respite from Capitol Hill — Schumer announced that the Senate would “vote next week on the national security supplemental aid request for Ukraine, Israel, Taiwan as well as border security.”

The leader elaborated that discussions regarding proposed border security provisions would continue over the weekend, urging the White House and Senate Democrats and Republicans to “try and reach a deal before the holiday recess.” With that, Schumer dashed the senators’ hopes of hopping the next flight out of D.C. to escape the Capitol’s vicious partisanship and politicization while placing on hold their dreams of sugar plum fairies and roasting chestnuts. However, as Leader Schumer admonishes, when life gives you lemons, make lemonade. Senators, including Schumer, who were waiting for the supplemental aid negotiators to consummate deals, seized that moment as a golden opportunity to fill the lower federal courts with President Joe Biden’s highly qualified diverse judicial nominees.

Impressive prospects abounded, and they awaited senators’ perusal on the Senate floor. For the appeals courts, Democratic and Republican members could have favored Joshua Kolar, a 7th Circuit nominee, who is an experienced Northern District of Indiana Magistrate Judge and former Northern District Assistant U.S. Attorney. Kolar earned powerful support of Indiana Republican Sens. Mike Braun and Todd Young. Another similar possibility was Seth Aframe, a 1st Circuit nominee, who has long been a District of New Hampshire Assistant U.S. Attorney.

For the district courts, senators might have voted on a dozen well qualified, mainstream nominees. Superb examples are Northern District of Oklahoma nominees Sarah Hill and John Russell, both of whom enjoyed the strong support of Oklahoma Republican Sens. James Lankford and Markwayne Mullin. Hill served as a Tribal Special Assistant U.S. Attorney in the Northern District U.S. Attorney Office and the Cherokee Nation Attorney General. Hill is the first indigenous woman to serve as a district judge in Oklahoma, and she would be the fourth Native American woman whom Biden has confirmed, which means that the president has appointed half of the indigenous federal jurists confirmed throughout U.S. history. Russell had served as a Northern District Assistant U.S. Attorney and had been a distinguished private practitioner. On Tuesday afternoon, the Senate easily confirmed Hill and Russell.

A third excellent illustration is highly experienced Southern District of Texas Magistrate Judge John Kazen, who earned much support of Texas GOP Senators John Cornyn and Ted Cruz. On Tuesday night, Schumer filed cloture on Kazen, District of Colorado nominee Magistrate Judge Kato Crews and Middle District of Pennsylvania nominee Karoline Mehalchick, so the Senate will confirm those nominees during the week of Jan. 8.

In short, when members return from the holiday recess, senators must continue discharging their essential Constitutional responsibility to promptly fill lower federal court vacancies with exceptional judges. 

Carl Tobias is the Williams Chair at the University of Richmond.