We previously looked at the 4th Circuit and the dramatic transformation effected by President Obama. The comment thread gave rise to the idea—why not make this a series, with an entry about all 13 Circuit Courts of Appeals? That is what I shall do.
For part 2 of the series, we go to the Midwestern 7th Circuit, where Obama’s impact has been much more limited due to GOP obstructionism, and which is one of four circuits with a GOP majority (6-3 with two vacancies right now). This court hears all federal appeals in cases from Wisconsin, Illinois, and Indiana.
The fact that it contains Chicago means it should get some interesting (to say the least) cases. Indeed it has at several points, including hearing the notorious Chicago Seven case involving protestors arrested at the 1968 DNC. The months-long trial, in federal district court, was a farce, involving a fiercely biased judge. The Chicago Seven were convicted, and appealed to the 7th Circuit, which overturned their convictions and sent the case back for trial before a new judge. (John Paul Stevens briefly mentions this case in Five Chiefs. He was on the 7th Circuit at that time and discusses how the case affected the dynamics of the work the judges all did.)
More below the fold.
The current composition of the court
Unlike most courts, this court remains dominated by Reagan judges—4 of 9 active judges, and 2 of 3 senior, were named by Reagan. Notable among them are Richard Posner and Frank Easterbrook, two respected legal scholars and worshippers of the free market. Antonin Scalia in fact once said that if he could choose his own successor, he would choose Easterbrook. abcnews.go.com/...
Nonetheless, some Republicans on the 7th Circuit have shown a bit of an independent streak—Posner himself, the respected conservative who upheld a voter ID law in Indiana, wrote an opinion opposing the one in Wisconsin. He and another Republican (Ilana Rovner, a GHW Bush appointee) voted with the Democrats on this. However, their votes were not enough to form a majority. A 3-judge panel had upheld the law, and a majority of the full court is required to reverse that judgment. That majority was not, is not there.
On another hot-button issue, gay marriage, liberals won in the 7th Circuit. Posner, the conservative, wrote the decision, joined by two Democrats, but the full panel refused to hear the case to possibly reverse it, indicating other Republicans agreed with Posner.
Posner also wrote the decision (joined by a Democrat) striking down Wisconsin’s abortion law that is very similar to the Texas one struck down by SCOTUS. Don’t be fooled, though—Posner is no liberal. Neither, of course, is Anthony Kennedy, who voted with the liberals in the Texas case. (A Reagan-appointed judge dissented from the Posner opinion.) Posner is unpredictable.
One other Republican on the 7th Circuit bears mentioning—Diane Sykes, appointed by GW Bush. She is very far to the right, and has repeatedly been mentioned by Donald Trump as someone he would appoint to the Supreme Court. (Her ex-husband is conservative radio host Charlie Sykes, not that that matters.) At 59, she’s younger than all the current justices except Elena Kagan, so could serve a while. She of course ruled in favor of the Wisconsin voter ID law. She’d be a disaster on SCOTUS. Another reason why we can’t let Trump win. (Please let that CNN poll be wrong.)
Obama has, unfortunately, not had a lot of impact on this court. He got only one nominee confirmed, David Hamilton. When Obama took office, the 7th Circuit had one vacancy, created by a Republican retirement. Obama made Hamilton his very first nominee, to any court—reasoning that Hamilton would be a bipartisan, consensus choice. A moderate liberal, Hamilton is a nephew of widely respected former Rep. Lee Hamilton, and has broad support across the political/legal spectrum—e.g. Sens. Evan Bayh and Richard Lugar were both big boosters of Hamilton. Obama, with his obsession with bipartisanship, figured Hamilton would be a good first nominee, to extend an olive branch to the GOP.
Oops. Bad miscalculation by someone who should have known better. The GOP smacked down that olive branch (again), vigorously opposing Hamilton. Why? Because Hamilton had once done pro bono work for the Indiana affiliate of the ACLU, and as a federal district (trial) court judge, had ruled against an openly sectarian prayer held in Indiana legislative sessions. Two big deal breakers for a party dependent on Christian extremists. Lugar wound up being the sole GOP vote in favor of Hamilton’s confirmation.
It should be noted that despite his great miscalculations, Obama gave us a pretty decent judge here. Besides his background, Hamilton heard all the cases mentioned (voting rights, LGBT rights, abortion), and voted with us in all of them.
But nothing else has gone right when Obama tried to fill 7th Circuit vacancies. Nothing but GOP obstructionism every step of the way. Clinton appointee Terence Evans retired (and died a year later), and Obama nominated Victoria Nourse to the seat. No dice. The Democrats’ asinine adherence to blue slips meant Nourse never saw the light of day because Ron Johnson wouldn’t return his. And more recently, GW Bush appointee John Daniel Tinder retired as well. Obama has a nominee pending for that seat, and a new one for the Evans seat. Neither has a chance, of course.
One more Democratic judge bears noting: Diane Wood. She’s a staunch liberal, sometimes functioning as a counterpoint to judges like Posner and Easterbrook. Obama has known her for some time, from their days lecturing at Chicago Law. She was under serious consideration for the Supreme Court by Obama. Ultimately, in another failed attempt at bipartisanship, he chose Elena Kagan instead. She had a very thin paper trail, had solid bipartisan credentials from her time as Harvard Law dean, and would surely provoke less resistance from the GOP (which had only 41 senators at that time).
Wrong again. The GOP voted no en masse, seizing on her support of barring military recruiters from Harvard (as a statement against Don’t Ask Don’t Tell) as their justification. Plus, as Jeffrey Toobin notes, the NRA opposed her, and that A rating from the NRA means a lot to GOP senators. In the end, Kagan received only 5 GOP votes—and that awful Ben Nelson voted against her.
But this has worked out, too—Kagan’s Supreme Court record is solid, and many people say she’s the best writer on the Court.
The Senate and Our Great Opportunity
None of the circuits better illustrate the importance of the Senate than the 7th Circuit. If not for GOP obstructionism, Nourse would have been confirmed, and the GOP majority would have been reduced to 6-5. And the voter ID law in Wisconsin would have been struck down. But that is only part of the tale. Look again at which states comprise the 7th Circuit—Wisconsin, Illinois, Indiana. What do these states have in common? They have highly competitive Senate races where Democrats are favored to oust Republicans, as of now. In fact, the 7th Circuit states probably represent our best three takeover opportunities. Tammy Duckworth, Russ Feingold, and Evan Bayh are all running considerably ahead of their GOP opponents.
Duckworth, Feingold, and Bayh are all critical to our chances of winning back the Senate. But they represent a great opportunity for the 7th Circuit specifically. If all three of them win, then no Republican will be representing any state in the 7th Circuit. (Currently only the 2nd Circuit has that distinction.) Considering the outsize role home-state senators have in selecting nominees, a win like that is huge. If Democrats continue the asinine blue slip tradition of allowing either home-state senator to have a veto over potential nominees, it will be moot in the case of the 7th Circuit. And even if Democrats grow a spine and drop the blue slips, we’ll still have a lot more luck if a state has two Democratic senators than a state with one Democrat and one Republican (or two Republicans). Democrats will work quickly with Hillary Clinton to fill the vacancies, while Republicans will drag their heels even if blue slips are dispensed with. (Side note—when GHW Bush was president, New York’s two senators were Daniel Patrick Moynihan (D) and Al D’Amato (R). Since by custom senators submit lists of potential nominees to the president, Moynihan and D’Amato came to this arrangement: with the GOP president, Moynihan would get one nominee for every three D’Amato got. For federal district court in NYC, Moynihan chose Sonia Sotomayor. Excellent decision.) While in theory Clinton could bypass Ron Johnson and work only with Tammy Baldwin, the process would be a lot smoother and better for us if Johnson isn’t there to gum up the works and Clinton is working with both Baldwin and Feingold.
The 7th Circuit is about to change in a major way. Of the nine judges, only Sykes and Hamilton, both 59, are not yet eligible for senior status, the form of semi-retirement where judges may continue hearing cases part-time. Furthermore, of the 5 GOP nominees who are not Sykes, four are in their mid-to-late 70s (Easterbrook, 68, is the exception). There’s a good chance that some of them would not outlast even a one-term Clinton presidency, by choice or otherwise.
The next president will fill at least two vacancies on the 7th Circuit. Several more will probably arise, so the next president could wind up appointing an absolute majority of that court. (GW Bush appointed an absolute majority of the judges on the 8th Circuit, hence why that court is a dumpster fire that became the sole circuit to vote for the Zubik v Burwell expansion of Hobby Lobby.) With a President Hillary Clinton working with the six Democratic senators (including Duckworth, Feingold, Bayh) from the 7th Circuit states, we can reclaim that court for a generation or more. And then we can strike down voter ID laws and other outrages—remember, Indiana has the religious freedom law that conservative Christians will claim gives license to discriminate. Hobby Lobby gives them legal ground for those arguments. But a liberal 7th Circuit will shoot them down, figuratively of course.
We have the chance to amend the missed opportunities of the Obama presidency this fall. Clinton wins, along with Duckworth, Feingold, and Bayh, plus a couple more Democrats, and the 7th Circuit is ours. And Diane Sykes never gets to SCOTUS. That’s a critically important result, and one that’s well within our grasp. We must make it happen.