Senate Must Focus on COVID-19 Relief, Not Another Trump Appellate Court Nominee

Courts Resources 11.16.20

In January 2016, President Obama nominated Myra Selby to a vacancy on the U.S. Court of Appeals for the Seventh Circuit. Selby, a well-respected former Indiana Supreme Court justice, would have been the first African American and first woman from Indiana to serve on that court, but Senator Dan Coats, R. Ind., and Senate Majority Leader Mitch McConnell, R. Ky., made sure she never received a hearing or vote — and her nomination expired at the end of the 114th Congress.

The seat Selby was nominated to fill was one of more than 100 vacancies kept open by McConnell, who blocked votes on Obama’s judicial nominees during his final two years in office — even when Republican senators wanted their nominees confirmed.

Once Trump took office in January 2017, he wasted no time on judges. Eleven days after his inauguration, Trump nominated Neil Gorsuch to the U.S. Supreme Court seat that McConnell held open for nearly a year. One month after Gorsuch’s confirmation, Trump sent a Seventh Circuit nomination to the Senate. The nominee to that Indiana seat was not Myra Selby — it was Notre Dame Law School professor Amy Coney Barrett.

Barrett was one of at least 10 white judicial nominees chosen by Trump who replaced Obama nominees of color. She is representative of this president’s appalling record on judicial diversity. Of Trump’s 53 circuit court judges who have been confirmed, just one is Latino and zero are Black.

And now that Barrett sits on the Supreme Court following a rushed, sham process, Trump has continued his shameful record of diversity by selecting Thomas Kirsch — yet another white nominee — to fill Barrett’s seat.

Kirsch is the fifth nominee — all of whom are white — Trump has named to the Seventh Circuit, which is now the only all-white federal appeals court in the nation. Judge Ann Claire Williams, a Black woman, retired from the court in January 2018. Williams was the Seventh Circuit’s first judge of color and just the third woman of color to serve on a federal appeals court. Trump replaced her with a white nominee.

This seat was not one Trump should have filled in the first place, and he should not have the chance to fill it twice. If Kirsch is confirmed to the Seventh Circuit, the court — which covers Illinois, Indiana, and Wisconsin — will remain re-segregated.

Moreover, it is troubling that Senate Judiciary Committee Chairman Lindsey Graham is focused on rushing through this nomination after Trump decisively lost reelection and while the COVID-19 pandemic continues to rage on across the country. Let’s be clear: During the lame duck session, the Senate should only be taking up the most important priorities we have — not irresponsibly prioritizing their desire to stack our courts, which has reverberations for generations. There hasn’t been a circuit court confirmation in a lame duck Senate in decades, let alone during a time when the nation needs our leaders to focus on saving lives.

The Senate should be using this time to address the growing concerns of a nation confronting increasing death and illness, severely high unemployment, rampant hunger, insufficient access to health care, and long-term economic uncertainty. The Senate majority cannot be so reckless and negligent as to fail to pass COVID relief, funding the government, and addressing systemic racism and state-sanctioned violence against Black and Brown people.

We do not support the Senate irresponsibly moving forward on Kirsch’s nomination and urge senators to oppose his confirmation to this all-white federal appeals court.