Judicial Appointments in 2021

Between 2016 and 2020 there were a total of  234 federal judges confirmed by the United States Senate to serve—including three Supreme Court Justices. President Trump’s appointees were 84% white, 76% male, and a majority were either former prosecutors or corporate lawyers—and each will serve a lifetime appointment. When President Biden took office last year, there were the fewest number of judicial vacancies for a new president since 1989. However, since then, many judges have retired, or taken “senior status,” (a form of semi-retirement) so there are still many vacancies that the Biden administration is set to fill over the coming years. 

Clearly cognizant of the enormous stakes and the difficulty of the task at hand, the Biden administration has attempted to move quickly,in part by foregoing certain structural processes in the interest of efficiency. For example, the Biden Administration decided to not restore the ABA’s role in vetting potential judges before the President announces nominations. This is consistent with the previous administration, but differs from the Obama administration and other prior administrations. In addition, the Senate has continued to  forego the “blue slip” tradition which was abandoned in 2016. The blue slip process required both senators from a state where a judge would sit to approve of the judicial nomination. For example, from 2009–2016, 18 of President Obama’s nominees were denied a hearing due to this tradition. However, as of September, all of President Biden’s judicial nominees have been in states with no Republican senators, or no senators at all (D.C.). President Biden has not, and is not expected to, nominate judges to the Eighth Circuit or the District Court for Nebraska. Trump confirmed 3 judges on the Eighth Circuit, one judge on the U.S. District Court for Nebraska, and there are currently no vacancies. 

Upon taking office, President Biden promised to ensure the federal bench reflected the diversity of the American people—both in terms of demographic and professional backgrounds. As of September 23rd, the Senate has confirmed 14 federal judges, 11 of which are women; five for the United States courts of appeals, and nine judges for district courts. Moreover, the nominees include some historical firsts: the first openly LGBT woman to serve on any federal circuit court; the first openly LGBT federal judge in Colorado; the first AAPI woman to ever serve on the U.S. District Court of D.C.; the first woman of color to serve as a federal judge for the District of Maryland; a woman who would be the first federal judge of South Asian descent in Michigan; a labor lawyer and former union organizer who would be the first AAPI judge from Oregon on the Ninth Circuit; the first Hispanic judge on the Court of Federal Claims; the first Korean-American woman to serve as a federal appellate judge; the first Black woman to serve on the Ninth Circuit from California; the first Muslim American federal judge; the only judge with experience as a federal defender serving on the Tenth Circuit; the first Native American federal judge in Washington state; the first AAPI man on the U.S. District Court for the Western District of Washington; the first AAPI woman judge on the U.S. District Court for the Southern District of California; the first Hispanic district court judge in Ohio; the first AAPI judge on the D.C. Court of Appeals; and many more.  

There are currently 37 nominations awaiting Senate action: 8 for the courts of appeals, and 29 for federal district courts. There are currently 112 federal judicial vacancies, 80 of which are current.

Judge Smith Camp Takes Senior Status

Nebraska’s chief district judge, Laurie Smith Camp, took on senior status effective December 1, 2018. The date also marked the end of her seven-year term as chief judge. Smith Camp worked for the federal court for 16 years after being nominated by President George W. Bush in 2001. Although she took on senior status, Smith announced she will maintain a full caseload pending the confirmation of her successor.

Nebraska has three federal district judgeships- two in Omaha, and one in Lincoln. Smith Camp’s vacancy will be filled by presidential nomination and Senate confirmation. President Trump’s nomination will rely heavily on the recommendations of Nebraska Senator Sasse and Fisher.

On December 13th Sens. Ben Sasse and Deb Fischer announced the judicial process for the vacancy on the U.S. District Court for the District of Nebraska. Back in November, Sen Sasse said “In the coming weeks, as we look to fill her seat, we’ll be looking for men and women of integrity who are also committed to the Constitution and the rule of law.”

Click here or here to read more about the Judge Smith Camp’s pending vacancy.

ABA rates Omaha Attorney Steve Grasz as ‘not qualified’ for 8th Circuit Court of Appeals & the Senate Judiciary Panel Splits Along Party Lines Over the Nomination

Steve Grasz
Steve Grasz

The American Bar Association has decided that Steve Grasz, the Omaha attorney, is “not qualified” for a seat on the 8th U.S. Circuit Court of Appeals.  This rating reflected, with one abstention, a unanimous vote by the standing committee from the ABA that reviews judicial nominations.

This is a notable decision because only two judicial nominees have ever received unanimous “not qualified” ratings since 1989, stated Carl Tobias, a professor at the University of Richmond School of Law who focuses on this federal judicial selection process.  He also added that this was a “very rare” decision. Tobias points out that earlier this year, the bar association gave Neil Gorsuch a unanimous rating of “well qualified” for a seat on the Supreme Court.

Tobias said that the ABA, when determining their ratings, looks at a variety of factors, such as experience, intelligence, independence, diligence, ethics and temperament.  They do not explain their ratings when they initially release them, but sometimes will testify about them. The ABA will testify on their rating of Mr. Grasz on November 15th in front of the Senate Judiciary Committee.

Both Deb Fischer and Ben Sasse, two of Nebraska’s Republican senators, recommended him for the 8th Circuit seat.  When President Donald Trump followed their recommendation and nominated him, the two senators praised the president.

In response to the ABA rating, Sen Sasse issued the following statement:

“It’s sad that the ABA would contort their ratings process to try to tarnish Steve’s professional reputation in order to drive a political agenda,” Sasse said. “In more than a decade as Chief Deputy Attorney General, whether he was litigating cases before the U.S. Supreme Court in Washington or the Nebraska Supreme Court in Lincoln, Republicans and Democrats alike knew that Steve represented Nebraska with integrity and professionalism.”

After reviewing Steve Grasz’s nomination on Wednesday, Senate Judiciary Committee members are split along party lines. The committee is not expected to vote on the nomination before November 15th, however Mr. Grasz will need a majority confirmation from the full Senate.

Out of the 45 judicial candidates that President Trump has nominated, 43 have been deemed qualified, or well-qualified, by the ABA.

You can read more about the hearings from the Lincoln Journal Star:

Omaha World Herald:

Judicial Nominations Update

Steve Grasz
Steve Grasz

In August, Steve Grasz was nominated to the U.S. Court of Appeal for the 8th Circuit by President Trump. Recommended by both Sasse and Fischer, Grasz served as Nebraska’s deputy attorney general from 1991-2002. Grasz also served as legal counsel for Gov. Ricketts, general counsel for the Nebraska Republican Party, and legal counsel for Nebraskans for the Death Penalty. Ricketts, Sasse, and Fischer have all praised his experience, credentials, and integrity.

In addition, four of the most recent judicial nominees put forward by the Trump administration have cleared the Senate Judiciary Committee, but two of these nominations were closely contested. John Bush, nominated to the 6th US Circuit Court of Appeals, and Damien Schiff, nominated to the US Court of Federal Claims, both faced tough questions about blog posts they made. Bush made posts claiming that President Obama was born in Kenya and calling slavery and abortion the two greatest tragedies in our country. Schiff called Justice Kennedy a “judicial prostitute.”  Both passed through the committee with narrow 11-9 margins.

Steve Grasz will have a hearing before the judiciary committee in the U.S. Senate this week on November 1st.

Nebraska’s federal judge nominee – Robert Rossiter Jr.

Photo from Creighton University School of Law
Robert Rossiter  Jr Creighton University School of Law

Robert Rossiter Jr. is an Omaha-based attorney who was nominated by Senators Deb Fischer and Ben Sasse to replace U.S. District Judge Joseph Bataillon. Bataillon’s vacancy was announced on October 2nd, 2013 and the nomination of Rossiter was made on August 15th, 2014. After nearly one year, however, a judicial vacancy remains in Nebraska’s District Court. Rossiter graduated from Creighton Law in Nebraska with honors in 1981. He has been listed in Best Lawyers in America since 1995 in the areas of labor and employment law. Rossiter has also been chair of the Federal Practice Committee for the district of Nebraska and also served as chair for the House of Delegates for the Nebraska Bar Association. Rossiter is currently an adjunct employment law professor and legal writing instructor at Creighton.

Nebraska’s judicial nomination process

When a vacancy occurs, lawyers submit their names for consideration to the judicial nominating commission. A public hearing is held and candidates are allowed to speak on their own behalf. The commission submits the names of at least two candidates to the Governor and voters are given the option to retain judges. If the governor does not make an appointment within 60 days of receiving the list of nominees from the judicial nominating commission, the Chief Justice of the Supreme Court makes the appointment from the list.

Here is a sample letter that can be sent to Nebraska’s current Senators, Deb Fischer and Ben Sasse, to let them know that you would like judicial vacancies filled.

Dear Senator,

The federal courts and the judges who serve in life-time seats on those courts matter to me. Our nation’s federal courts make rulings on virtually every issue that is important to me and my family. Individuals turn to the courts to protect their basic rights and liberties. We need a federal judicial branch that is fully staffed by diverse judges with a variety of personal and professional backgrounds.

As my United States senator, you are in a position of great responsibility on this issue. I am counting on you to ensure that any of us can have our day in court and have confidence in a fair hearing and a ruling based on the Constitution.

Please ensure that every vacancy on the federal courts is filled by supporting prompt consideration and a confirmation vote on the Senate floor.

Sincerely,

(Name)
(Town)