By Marilyn Odendahl

The Indiana Citizen

November 22, 2023

The inclusion of two Indiana judges in the White House nominees last week to the federal bench indicated a level of cooperation between the Democratic administration and Indiana’s two Republican senators that has not been seen in other states with GOP senators.

A statement from White House counsel Ed Siskel called attention to the unusual dynamic by noting the five judicial nominees included “two nominees from a state represented by Senate Republicans.”

Charles Geyh, professor at the Indiana University Maurer School of Law, believes both Sens. Todd Young and Mike Braun are having conversations with someone in the Biden administration and reaching agreement on candidates they favor for the U.S. district courts in Indiana.

“I think to the credit of the Indiana Senate Republicans, what I am guessing must be going on here is that some conversations are being had,” Geyh said. “There are probably some conversations that are oriented toward a kind of consensus building … rather than just playing power politics. On the side of Senate Republicans, that means not just saying no for the sake of saying no and making life miserable and delaying for the sake of making life difficult and miserable. They are listening. They’re having conversations.”

Those conversations are bearing fruit.

In 2022, Doris Pryor was confirmed to the 7th U.S. Circuit Court of Appeals, becoming the first Black jurist from Indiana to serve on the Chicago-based federal appellate court. In 2023, Matthew Brookman was confirmed to the U.S. District Court for the Southern District of Indiana.

Also, Northern Indiana District Court Magistrate Judge Joshua Kolar is waiting for a confirmation vote from the full Senate to fill the seat held by the late Judge Michael Kanne on the 7th Circuit.

The most recent nominees – St. Joseph County Superior Court Judge Cristal Brisco and Elkhart County Superior Court Judge Gretchen Lund – have been tapped to fill the vacancies in the U.S. District Court for the Northern District of Indiana. One of those seats has been open since Jan. 23, 2021 and, according to data from the Administrative Office for the U.S. Courts, is one of the oldest vacancies in the federal courts.

Comparatively, judicial vacancies in some other states with two Republican senators are languishing.

For example, Texas has eight openings in its federal district courts, including one that dates from Feb. 26, 2021. But the White House has only put forth one nominee. Also, Missouri has three vacancies on its district court bench and no nominees.

Geyh pointed out the “ultimate irony” is that 30 years ago, collaboration on federal judge nominees, even when the White House and the home-state senators were from opposing parties, was business as usual.

“So this is kind of old school government working the way it should where there is an attempt to work something out,” Geyh, who served as counsel to the U.S. House of Representatives Committee on the Judiciary and studies judicial conduct, ethics, procedure and administration, said.

Filling the two vacancies should expedite the judicial process in the Northern Indiana District Court, which has five judgeships and which saw about 524 cases filed per judge in the 12-month period ending June 30. Moreover, Geyh said, the cooperation between President Joe Biden and the Indiana senators could remove some of the rancor from the confirmation process and, potentially, restore some of the public’s confidence in the courts.

“The perpetual fighting over nominees at the (U.S.) Supreme Court and lower court levels, in which both Republicans and Democrats are accusing the nominees of the opposing party’s president of being extremists, that is diminishing confidence in the judiciary as a whole,” Geyh said.

He sees the public’s confidence as being restored, little by little, when Republicans and Democrats join to confirm nominees to the federal courts. “It sidesteps the perception that we’re basically peopling our courts with ideological zealots from the left and the right,” Geyh said. “I think that’s a very positive development.”

Fragile blue slip tradition

The support of a nominee’s home state senators is key to the confirmation process. If the senators do not like the nominee or, as Geyh said, just want to make life miserable for the White House, they can withhold their “blue slips.”

A Senate tradition for more than 100 years, blue slips are seen as critical to the role the Senate has in elevating individuals to the federal bench. The Constitution gives the president the power to nominate and appoint judges but “with the advice and consent of the Senate.”

The slips are actual blue pieces of paper that the senators receive from the Senate Judiciary Committee chair. If the senators support the judicial nominee to the federal courts in their state, they return the blue slips to the committee chair, but if they oppose the nominee, they keep the blue slips.

Consequently, the slips are viewed as a way to foster cooperation and consensus between the White House and the home-state senators on judicial nominees.

The ability of the blue slip to push or prevent a confirmation has been inconsistent in recent years.

When former President Barack Obama nominated Myra Selby, a retired Indiana Supreme Court justice, to the 7th Circuit, then Indiana Sen. Dan Coats, a Republican, withheld his blue slip. Selby’s nomination stalled. The Senate judiciary committee did not give her a hearing and she was denied the opportunity of becoming the first Black jurist from Indiana to sit on the 7th Circuit.

However, during the Trump administration, Republicans, who had held a majority in the U.S. Senate, reduced the power of the blue slips by confirming nominees to the federal circuit courts even if one or both home-state senators did not turn in their slips. Judge Michael Brennan from Wisconsin was among the nominees who benefited from the change in the blue slip process. He was nominated and confirmed to the 7th Circuit, despite Wisconsin Sen. Tammy Baldwin, a Democrat, withholding her blue slip.

Geyh said senators now are “incentivized not to overuse” the blue slip power because it is fragile. With Democrats holding the majority in the upper chamber, they could toss the blue slip tradition altogether and confirm Biden’s judicial nominees with little or no Republican votes.

“The fact that our senators are not sort of going right to that device just reflexively is to their credit,” Geyh said of blocking a nomination by withholding a blue slip. “And I think, similarly, the Biden administration is selecting judges with one eye toward the concerns of the Indiana senators. I just can’t imagine that they are simply blowing them off.”

Bipartisan support is crucial

Carl Tobias, professor at the University of Richmond School of Law, who has long studied the federal judicial confirmation process, also sees hints of behind-the-scenes cooperation between the Indiana senators and the White House.

“My sense is that Young and Braun have, maybe, agreed amongst themselves on certain people and, maybe, recommended them to the White House,” Tobias said. “I’m not sure who initiated that, but it’s clear that, at least, Young, and to some extent, I think, Braun, have pushed it forward.”

In their answers to the judiciary committee’s questionnaire, Kolar and Brookman illuminate the cooperation before their nominations were announced.

Brookman said he was initially contacted by the office of U.S. Rep. Andre Carson, D-Indiana, then met with staff from Young’s and Braun’s offices, before being interviewed by the attorneys from the White House counsel’s office. Conversely, Kolar was first contacted by the White House counsel’s office and then met with the Indiana senators’ staffs.

The result from this careful vetting, Tobias noted, are two solid nominees from last week’s announcement. In addition to having judicial experience, both Brisco and Lund built impressive careers in the legal profession.

Brisco, a 2006 graduate of the University of Notre Dame Law School, was an associate at Barnes & Thornburg, before becoming corporation counsel for the city of South Bend from 2013 to 2017. She then served as general counsel to Saint Mary’s College until 2018 when she joined the state court bench.

Lund, a summa cum laude graduate of Valparaiso University School of Law in 2001, began her career as an associate at Ice Miller in Indianapolis and then, from 2002 to 2006, served as a law clerk for Magistrate Judge William Lawrence on the Southern Indiana District Court. After that, she was a deputy prosecutor in the Elkhart County prosecutor’s office, before joining the judiciary in 2008.

Brisco and Lund will be filling the vacancies created by Judges Theresa Springmann and Jon DeGuilio who took semi-retirement status in January 2021 and July 2023, respectively. DeGuilio was nominated by Obama and confirmed to the district court in 2010, while Springmann was nominated by President George W. Bush and confirmed in 2003.

Young immediately applauded the choice of Brisco and Lund which, Tobias said, could greatly ease their paths to confirmation by the full Senate.

“Judge Brisco and Judge Lund are experienced, qualified jurists who have served honorably in state superior courts,” Young said in a statement shortly after the White House announced the nominations. “I fully expect them to excel on the federal bench, and I anticipate supporting both of them as they enter the confirmation process.”

Brisco and Lund will be called to appear before the judiciary committee to answer questions about their backgrounds and demonstrate their knowledge of the law. A few weeks after the hearing, the committee will vote on their nominations and, if a majority affirm, they will proceed to a confirmation vote by the full senate.

Tobias expects Young will introduce and “say glowing things about” Brisco and Lund when they appear before the judiciary committee. That, Tobias said, “will take the wind out of the sails of the ones who are likely to make trouble” and may convince some other Republican senators to support the Indiana nominees.

Bipartisan support is significant, Tobias said, as the judicial confirmation process has become “very politicized and very partisan.”

“It will increase during the time these nominees are considered because you’re going into the election year. I’m already noticing it ramping up, the opponents are nastier, even nastier than they were earlier this year,” Tobias said. “But, I think, the good news for the Indiana people is that they’ve got Young and Braun on board and that should make (the Republicans) calm down a little bit.”

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and, and worked as a planner for other newspapers, including the Louisville Courier Journal. 

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