The election of Donald Trump has introduced fresh uncertainty into the effort to fill two judicial vacancies in Minnesota, leaving the possibility that the state’s federal bench will be beset for months by what some observers have called a partial shutdown of the nation’s court system.
Judges Donovan Frank and Ann Montgomery decided earlier this year to assume senior status, a form of retirement that allows judges to maintain part-time or full case loads, immediately creating two of the country’s now 38 “judicial emergencies.”
Democratic Sens. Amy Klobuchar and Al Franken moved quickly to create a bipartisan judicial selection committee days before Frank’s senior status became official in October, and the committee is now reviewing applications.
But judicial scholars say the task of appointing a Supreme Court justice likely will take precedence in the White House and the U.S. Senate once Trump assumes office, and 59 other judicial nominations already are pending — some as long as 11 years.
“This whole business of filling vacancies at one point was a ministerial task: The senators filled vacancies because that’s just what you did,” said Russell Wheeler, a visiting fellow at the Brookings Institution who spent nearly 30 years with the Federal Judicial Center, the national policymaking body for federal courts.
“Having the time from nomination to confirmation now being in the hundreds of days is just one more indication of how polarization prevents the government from doing most anything.”
Under the U.S. Constitution, the president nominates candidates for federal judgeships, which require Senate confirmation. But the process is otherwise heavier on custom than Constitutional code. A state’s home senators generally take the lead on recommending candidates. But if those senators are not of the president’s party, they can wield less influence.
Rep. Erik Paulsen, Minnesota’s senior Republican member of Congress, is among those who suddenly could have greater influence on whom Trump nominates.
Paulsen was not available for an interview Friday, but said in a statement: “I am taking an active role in helping select and fill these judicial vacancies. I have been in contact with the incoming administration and taken steps to make sure whoever is nominated is best suited to serve Minnesotans and the American people.”
Yet while officials like Paulsen may be consulted by the White House, only the home state’s senators can formally object to a nominee receiving a confirmation hearing or Senate vote.
Minnesota’s most recent federal vacancy, filled by the January confirmation of Wilhelmina Wright, was quick work by recent standards. Wright’s confirmation after 171 days of vacancy was the second-fastest among the 22 confirmations since Nov. 2015.
The number of district and circuit court vacancies has more than doubled since January 2015, when Republicans gained control of the U.S. Senate, Wheeler said. During that same period, the number of confirmations grew by less than one-tenth.
The nation’s federal district and circuit courts now have 105 total vacancies, with 59 nominations pending as of Friday. One position has been vacant nearly 11 years, and Texas is waiting to fill 11 seats that have been open as long as 5 years.
The Judicial Conference considers Minnesota’s vacancies emergencies because the state’s federal district court has a caseload of more than 600 “weighted filings” per judgeship. It also is the first time in at least 20 years that Minnesota has had two federal court vacancies at the same time, said Tom Heffelfinger, a former U.S. attorney and co-chair of the Franken-Klobuchar task force, which has been reviewing possible nominees since last month.
Officials from the selection committee hope to settle on two candidates to recommend to Trump’s transition team before his Jan. 20 inauguration. A Klobuchar spokesperson said the group of eight Minnesota legal professionals “has received an impressive group of applicants” and will work with the incoming White House Counsel’s Office to “ensure this process continues efficiently.”
Heffelfinger said that if Minnesota can submit names to the Trump transition team before Inauguration Day, they will be the first considered by the White House and the first considered by the Senate. “So they should be the first to get confirmed,” he said. “If you wait until after the inauguration, there will be a flood of names and Minnesota could wait a couple of years.”
A multiyear lag could further burden Minnesota’s already taxed full-time federal judges. Minnesota’s district ranked 16th out of 94 nationally in total filings per judgeship and ninth in terms of pending cases, according to federal data as of June 2016.
“So two vacancies on a seven-judgeship court can make a difference,” Wheeler said.