Democrats Challenge Pick to Replace Barrett on Seventh Circuit

The U.S. Capitol in Washington. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — President Donald Trump’s nominee to fill the Seventh Circuit seat left empty by Justice Amy Coney Barrett faced sharp criticism Wednesday from Senate Democrats who warned against filling vacancies on the federal bench during the lame-duck period. 

They called the final surge to confirm conservative judges unprecedented following the president’s failed bid for reelection. Trump joins a list of just 10 one-term presidents.

Senators on the Judiciary Committee heard from Thomas L. Kirsch, tapped to serve on the Seventh Circuit after Barrett’s confirmation to the Supreme Court last month, as well as four nominees to serve on district courts in Tennessee and South Carolina and the Federal Claims Court. 

The GOP-controlled Senate also confirmed three district judges on Tuesday and two more on Wednesday, before recessing for Thanksgiving until Nov. 30.

Senator Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, has urged Republicans to respect the will of the voters and stop seating Trump judges after President-elect Joe Biden’s victory. 

After Presidents George W. Bush and Barack Obama landed second terms in 2004 and 2012, the Senate continued down the line with picks for the judiciary. 

“Unlike Presidents Bush and Obama,” Feinstein wrote in a letter to Chairman Lindsey Graham last week, “President Trump has lost his reelection bid.”

Kirsch, who for three years has served as the U.S. attorney for the Northern District of Indiana, told senators Wednesday he shares his judicial predecessor’s originalist philosophy

He worked as a partner at the law firm Winston and Strawn and was also a federal prosecutor from 2001 to 2008 focused on white-collar crime, including rooting out fraud and corruption by elected public officials. 

Republicans praised Kirsch as an outstanding addition to the federal bench. But Democratic Senator Mazie Hirono of Hawaii said she was concerned the nomination was “further entrenching the lack of diversity that is characteristic of President Trump’s judicial nominees.” 

The NAACP wrote to warn senators on Tuesday against supporting Kirsch, noting the bench he is to sit on is the only all-white federal appeals court in the country. 

The president has appointed no Black or Native American appellate judges and 90% of his total judicial legacy is white, the NAACP letter states, calling the pattern destructive. 

“Moreover, this seat is only available because Senate Republicans blocked President Obama’s nominee, Myra C. Selby, who would have been the first African American to serve on the Seventh Circuit from Indiana,” Hirono said, referring to a 2016 nomination that did not receive a vote in the Republican Senate. 

“It fails to look like America. It fails to represent the diversity of America,” her fellow Democrat, Senator Richard Blumenthal of Connecticut, later added. 

But Republicans see in Kirsch a judge dedicated to a strict interpretation of the Constitution. 

“I would apply the ordinary public meaning of the words at the time that they were written. I do not believe that it’s the job of a judge to change the law,” the nominee said. 

Kirsch told the panel he would not apply legislative history when deciding cases, saying he did not want to “look behind the curtain” at the intent of Congress. 

“I would look at the text and confine myself to the text of the statue,” he said. 

Asked whether he believes Roe v. Wade was correctly decided, a question Democrats routinely turned to during Barrett’s confirmation process, Kirsch easily tackled the question as a soon-to-be appellate judge bound by the landmark abortion decision. 

“I would apply all Supreme Court precedent as a lower court judge, including Roe and its progeny,” Kirsch said. 

Blumenthal also looked to the nominee to state whether he would have signed onto Barrett’s appeals court dissent in Kanter v. Barr, in which she argued the Second Amendment prevents Congress from categorically excluding felons from owning a firearm. 

“It would be inappropriate,” Kirsch said, “for me to grade Seventh Circuit precedent and to indicate in a case like that whether I would agree with the majority opinion or whether I would agree with the dissent.” 

The Senate committee also heard from Katherine A. Crytzer, one of two Trump nominees slated to serve in the Eastern District of Tennessee. 

If confirmed, Crytzer will fill the seat left vacant by the death of Chief Judge Pamela L. Reeves, an Obama appointee and the first woman to serve on the federal bench in the district. 

“I’m grateful for her service and the trail she blazed,” Crytzer said. “If confirmed, it would be the honor of a lifetime to follow Judge Reeves as the second woman to serve as a district judge for the Eastern District of Tennessee.”

Her fellow Tennessee nominee, Charles Edward Atchley, and Joseph Dawson, tapped to be a judge in the District of South Carolina, also made brief remarks. They were joined by Federal Claims nominee Zachary N. Somers, who currently works as chief investigative counsel for Republicans on the Senate Judiciary Committee under Chairman Graham. 

The full Senate also cleared Toby Crouse to be a Kansas district judge with a 50-43 vote, Benjamin Joel Beaton to be a Western Kentucky district judge with a 52-44 vote and Kristi Haskins Johnson to be a Southern Mississippi district judge with a 53-43 vote on Tuesday. 

On Wednesday, senators voted 49-43 to land Stephen A. Vaden on the Court of International Trade, then voted 49-41 to secure Kathyrn Kimball Mizelle a judgeship in the Middle District of Florida. Mizelle was flayed by Democrats for receiving a “not qualified” rating from the American Bar Association.

Senate Majority Leader Mitch McConnell teed up the nomination of Taylor B. McNeel, to serve as a judge in the Southern District of Mississippi, for a vote when members return after the holiday recess.

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