Why Has a Key Federal Judgeship in Wisconsin Been Vacant for 2,000 Days?

06/09/2015 09:00 am ET | Updated Jun 09, 2016
Justin Sullivan via Getty Images

Central to the latest wrangling over a federal appeals court vacancy is one crucial fact: Wisconsin's vacancy on the Seventh Circuit is the oldest circuit court vacancy in the entire country. It's been empty since Judge Terence Evans stepped down in January 2010. That was 2,000 days ago. In that time, President Obama has successfully filled about 300 other judicial vacancies around the country, and the Seventh Circuit, working shorthanded and grappling with profoundly important issues like voting rights, the death penalty, marriage equality, and the Second Amendment, has had to decide more than 7,000 cases.

With such vital issues at stake, a new judge is needed now more than ever. The people of Wisconsin--and of Illinois and Indiana, which also fall within the Seventh Circuit--deserve a court that's working at full capacity. That's why Senator Tammy Baldwin should be commended for taking action and clearing a path forward for the president to name a qualified nominee. She recently sent a list of eight qualified candidates to the White House for the president to choose from. With a list of names in hand, the president can--and should--act swiftly on his constitutional authority to name a new Seventh Circuit judge.

Indeed, one might wonder why Baldwin didn't green light a nomination before now. The reason lies with Wisconsin's Republican Senator Ron Johnson. While Baldwin has bent over backwards to select judicial candidates in a bipartisan manner, Johnson has obstructed at every turn, and recently told the White House to keep waiting, indefinitely.

There's some important history to how we got here:

Back in 2010, President Obama nominated a law professor from the University of Wisconsin named Victoria Nourse to replace Judge Evans. Nourse had been recommended by Wisconsin's then-Senators Herb Kohl and Russ Feingold. But just days after taking office, Johnson announced his intention to block both Nourse and Western District of Wisconsin nominee Louis Butler, because Johnson had not been consulted on their nominations (he was not consulted, of course, because he had not yet been elected).

The president eventually withdrew Nourse, but Johnson wasn't satisfied. He wanted equal say in selecting judicial nominees, so he dismantled Wisconsin's decades-old commission process that gave greater influence to the senator of the president's party. (That earlier process was also in accord with common practice nationwide.) For the sake of collegiality, Baldwin agreed to go along. They established a new six-member commission and each appointed three members.

But with a new process came a new excuse for delay. The commission couldn't work on the Seventh Circuit vacancy, Johnson said, until the president made nominations to two other Wisconsin vacancies. That maneuver led to another year of waiting, and the commission did not solicit Seventh Circuit applications until July 2014--more than four years after the vacancy arose.

The commission finally interviewed eight finalists for the Seventh Circuit last November, but that's all it could accomplish. Charged with recommending at least four candidates, the commission deadlocked. Baldwin wrote to all members of the commission, encouraging them to find consensus. She asked Johnson to co-sign the letter, but he refused. In January, the commission notified both senators that it could not fulfill its charge, and by May--a full eight months after the process began and nearly six months after commission interviews--the process had stalled out entirely. So, after consulting with each of the candidates, Sen. Baldwin sent all eight names to the White House, at once preserving the commission's successfully completed work and ensuring that the president had a sufficient number of qualified Wisconsinites to choose from.

Yet again, Johnson refused to join Baldwin, and attacked her efforts to finally fill this vacancy as "partisan." That is not to say, though, that his position has been consistent. At one point he said that all eight candidates were now "tainted" and that the process must start over. More recently, he said that he is "willing to consider and continue to fully vet . . . two applicants who" the commission agreed on, but not anyone else.

It's not hard to see through Johnson's latest offer. It will only put the process back into an indefinite holding pattern while the White House waits for Johnson to "continue vetting" two candidates that he may but is not guaranteed to eventually endorse. It is one thing to bypass a broken commission process so that the vacancy can be filled; it is quite another to change the rules on the fly to ensure it remains empty.

After five years of stall tactics and changing the rules to whatever suits him, Johnson long ago forfeited whatever deference he feels he is owed. The president has a list of names and he should act, selecting the nominee who will best protect the rights of everyday people in Illinois, Indiana, and Wisconsin. After waiting 2,000 days, they deserve nothing less.