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Fill the New York Federal District Court Vacancies

By: Carl Tobias1Williams Chair in Law, University of Richmond School of Law. I wish to thank Margaret Sanner for her valuable suggestions, Jamie Wood, Jane Baber and Emily Benedict for their valuable research and careful editing, the University of Richmond Law Library staff for their valuable research, the New York University Journal of Legislation and Public Policy Quorum editors for their excellent editing and sound advice, Leslee Stone for her excellent processing as well as Russell Williams and the Hunton Andrews Kurth Summer Research Endowment Fund for their generous, continuing support. Remaining errors are mine alone. 

April 11, 2020

President Donald Trump strives to constantly remind the American people that court of appeals confirmations are his foremost achievement. The White House and the Republican Senate majority have plainly broken judicial selection records by approving fifty-one extremely conservative, young, and competent jurists; four of these appointees presently occupy New York Second Circuit posts. Nevertheless, appellate confirmations have imposed many serious complications, particularly on the ninety-four districts with seventy-three vacant positions out of 677 posts.

One trenchant example has been in the New York federal courts, which have encountered up to thirteen openings among fifty-two court seats during the first three years of Trump’s presidency. The Administrative Office of the United States Courts, the federal courts’ administrative arm, has carefully designated as many as ten “judicial emergency vacancies” in New York because the openings were consistently prolonged and the existing jurists have been handling substantial filings.     

Notwithstanding those pressing circumstances, Trump failed to recommend any candidate in New York before May 2018 or confirm a sole nominee before mid-October in 2019 when Eastern District Judge Rachel Kovner won confirmation. Indeed, among thirteen New York trial court vacancies, as many as eleven lacked nominees until May 21, 2019 because the Trump White House delayed resending to the upper chamber the seven well-qualified, mainstream nominees whom the President had mustered in 2018.

Nevertheless, the Senate approved Eastern District Judge Eric Komitee and Western District Judge John Sinatra in early December 2019, confirmed Eastern District Judge Gary Richard Brown and Southern District Judges Marie Vyskocil and Lewis Liman near Christmas, and confirmed Southern District Judge Philip Halpern in February 2020. All marshaled nominees who have captured appointment thus far have filled emergency openings.

Despite this progress, New York still confronts seven vacant positions in fifty-two slots. One Eastern District open post and two Southern District unoccupied seats comprise emergencies. Moreover, the Northern District vacancy, two of the Eastern District vacancies, and two of the Southern District vacancies lack mustered nominees.2President Trump did nominate Thomas Marcelle to the Northern District of New York vacancy in autumn 2018 and renominated him twice in November 2018 and in January 2019. However, Senator Kirsten Gillibrand retained her blue slip and the White House withdrew Marcelle’s nomination last year. 

Trial level jurists professionally resolve massive dockets, and the myriad empty slots significantly pressure New York courts, litigants and practitioners. Unfortunately, these conditions exemplify those in many of the federal districts around the United States. Therefore, President Trump, the chamber, and New York Senators Chuck Schumer (D) (current Senate Minority Leader) and Kirsten Gillibrand (D) must redouble their endeavors to cooperate and deftly fill all of the remaining vacancies. 

Upon Trump’s inauguration, New York experienced two Second Circuit openings and six vacancies in the district courts, two of which comprised emergencies. These openings remained vacant, principally because the GOP Senate majority would not process Gary Brown (Brown was eventually confirmed by the Senate in December 2019), Diane Gujarati, and Kathleen Sweet, the accomplished, moderate nominees whom President Barack Obama had tendered in the last half of his second term.   

Despite the mounting number of unoccupied seats, Trump managed to recommend no district court prospect before May 2018, while he neglected to marshal a single trial level appointee until October 2019. In May 2018, Trump nominated seven well qualified, mainstream picks, certain of whom the New York senators had proposed. The aspirants enjoyed a smooth Judiciary Committee hearing in August while promptly capturing September approval, yet early in January 2019 their nominations expired, returning all of the nominations to President Trump. The President only resent the Senate these designees in late May, but they felicitously won June panel reapproval and Kovner earned October appointment with KomiteeSinatraBrownVyskocil and Liman capturing approval in December and Halpern in February. Nonetheless, the chamber has failed to promptly muster the confirmation of Eastern District nominee Gujarati, yet it efficaciously carried over this aspirant from the opening session of the 116th Congress. The President also first recommended Southern District prospects John Cronan and Iris Lan early in November, but Republicans and Democrats were unable to concur about carrying them over while the administration has yet to renominate Lan.3The committee lacked time to schedule a December hearing, while Cronan and Lan awaited renomination, even though Trump has renominated numerous additional nominees and eventually renamed Cronan in late February.  

Trump, the chamber, Schumer, and Gillibrand must persistently coordinate to fill all seven of the trial court openings in New York.4Considerable evidence suggests that the Trump White House, the Senate, and the New York senators have cooperated to nominate and confirm multiple judges to New York vacancies at various junctures throughout the Trump presidency and the 115th and 116th Congress.  Schumer and Mitch McConnell (KY), who now holds the post of Majority Leader, should collaborate to expeditiously arrange robust chamber floor debates and confirmation ballots regarding Gujarati, the nominee who is waiting for confirmation. Schumer also must persuade Lindsey Graham (R-SC), the Chair of the Judiciary Committee, to rapidly schedule a panel discussion and report on Cronan and those plus a hearing for Lan, the Southern District picks whom Trump recommended in November, convince Trump to rename Lan, and persuade McConnell to efficiently assemble their chamber debates and confirmation votes. The Trump White House should assiduously consult New York’s politicians and carefully agree respecting impressive, moderate candidates for the two Eastern, one Northern and two Southern District vacancies which lack nominees and quickly nominate the prospects, while Schumer ought to cooperate with Graham and McConnell in facilitating their confirmation. 

New York encounters openings in seven district judgeships; three in fact are emergencies. Trump, the chamber, as well as Senators Schumer and Gillibrand, must concur on New Year’s resolutions to promptly fill these vacancies over 2020. If they collaborate and seat preeminent, mainstream jurists in each opening, the New York district judges will continue to swiftly, inexpensively, and fairly resolve mammoth caseloads, while the New York appointments process could serve as a valuable roadmap for the country.

Carl Tobias, Williams Chair in Law, University of Richmond School of Law

Suggested Citation: Carl Tobias, Fill the New York Federal District Court VacanciesN.Y.U. J. Legis. & Pub. Pol’y Quorum (2020).