WASHINGTON (CN) — The Senate on Tuesday approved Thomas Kirsch, 51-44, to serve on the Seventh Circuit, filling a vacancy left behind by Justice Amy Coney Barrett when she was elevated to the Supreme Court in October.
Kirsch, a member of the Federalist Society, previously served as U.S. Attorney for the Northern District of Indiana for three years. First nominated by President Donald Trump in 2017, Kirsch faced a divisive confirmation hearing this November with Republicans quick to praise his record and experience while Democrats expressed skepticism over the president’s pick.
Kirsch’s confirmation makes the Seventh Circuit the only all-white bench in the nation.
President Barack Obama nominated Myra Selby, the first woman and Black judge to serve on the Indiana Supreme Court, to fill a vacancy on the court in 2016.
But Senate Majority Leader Mitch McConnell — only newly minted as leader at the time — blocked Selby in short order after President Trump was ushered into the White House. Coney Barrett was later nominated and confirmed for the circuit seat.
Erinn Martin, policy counsel for the Lawyers' Committee for Civil Rights Under Law, lamented the nomination in a statement Tuesday evening.
"The confirmation of Thomas Kirsch, the fifth white nominee to the Seventh Circuit Court of Appeals in less than four years, would represent an egregious step backwards as it would cement the Seventh Circuit as the only all-white appellate bench in the country," she said. "It is past time for the federal courts to reflect the rich racial, ethnic and gender diversity of the country."
Kirsch, a Harvard Law School and Indiana University graduate, previously served as a partner at Winston and Strawn and a federal prosecutor specializing in white-collar crime and fraud.
In the interpretation of the law, Kirsch is a self-professed originalist. During his confirmation hearing in November, he told lawmakers on the Senate Judiciary Committee that he would reconcile disputes over federal statutes by weighing the intent of the law at the time it was issued.
This position rankled Democrats on the committee.
In one taut exchange with Rhode Island Senator Sheldon Whitehouse, the Democrat pressed Kirsch to explain how he would assess Brown v. Board of Education, which eradicated segregation in public schools.
The Equal Protection Clause of the 14th Amendment was adopted in 1868, and Whitehouse noted that it was exceedingly unlikely “anyone in that environment” would have expected it would eventually require integrated schools, particularly in the South.
“Indeed for 100 years it wasn’t seen that way until the Supreme Court decided in Brown v. Board Education that that had to go. That segregation in schools was an offense to the Constitution as well as to our moral and civil fabric,” Whitehouse said during the remote hearing. “I assume you would have been a no vote with Brown?”
Kirsch told the committee in terms of statutory interpretation he would take the “text of the statute and apply the ordinary meaning of the text at the time it was written.”
“Brown has addressed the Equal Protection Clause in numerous cases, but as a judge, my responsibility would be to apply Supreme Court precedent. My job would not be to change the law. I believe that’s the job of the legislator. I would impose my judgment, not my will, whether I agree or disagree with the law,” he said.
But cases do not typically appear at the Supreme Court first. They usually snake their way up through the circuit courts.
“You’re going to sit on a circuit court. The circuit court is going to hear cases of first impression that then the Supreme Court will ultimately review,” Whitehouse remarked to Kirsch in November. “You don’t need to be there if every case is determined under Supreme Court precedent — the reason we have circuit court judges is to sort through the stuff that doesn’t ineluctably follow from a Supreme Court precedent and make a decision.”
Based on his testimony, Whitehouse said he was concerned Kirsch would try to divine the intent of the people who wrote the law and in effect, would have been a dissenting vote in Brown.
Working to reassure the committee, Kirsch testified he would “not go with the intent, but the language of the statute.”
South Carolina Republican Senator Lindsey Graham, chair of the committee, was able to redeem Kirsch after noting that the Brown decision was only reached because it was shown that the “separate but equal” centerpiece girding the 14th Amendment did not actually ensure equal protection at all.
This, Graham explained, meant Brown was a ruling rooted in textualism and therefore Kirsch was not misaligned in his response to the Democratic senator.
During his nomination, Indiana Republican Senators Mike Braun and Todd Young praised Kirsch, noting his experience prosecuting gangs, narcotics crimes and corruption among public officials. With “sound judicial temperament,” Senator Braun said Kirsch would apply statutes instead of creating his own from the bench.
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