Obama judicial nominations

Andrew Cohen: Beer Summit between Arvo Mikkanen and Sen. Coburn?

Matthew L.M. Fletcher

Here.

An excerpt:

Sen. Robert Menendez, the Democrat from New Jersey, got grief, and rightfully so, when he put a hold earlier this month on the judicial nomination of U.S. Magistrate Patty Shwartz for a spot on the 3rd U.S. Circuit Court of Appeals. The senator said at the time that he was unimpressed with Shwartz’s knowledge of the law. Media reports, however, suggested that Menendez’s opposition to Shwartz had more to do with magistrate’s personal relationship with a federal prosecutor who had led a 2006 corruption investigation into Menendez. Awkward!

I have consistently railed against Republican senators who hold up President Barack Obama’s judicial nominees for no good reason. For example, I haven’t shut up about the lingering candidacy of a worthy man named Arvo Mikkanen, whose nomination in Tulsa has been held up, without explanation, by Tom Coburn, one of Oklahoma’s Republican senators.

But two wrongs just make a larger wrong — the major difference between what Menendez did to Shwartz and what Coburn has done to Mikkanen could be the extent of their candor — and a funny thing happened on the way to Shwartz’s failed judicial nomination. Under political pressure, Menendez agreed to meet with her again and, following their meeting, agreed to drop his reservations against the candidate.

Andrew Cohen in the Atlantic about the Dearth of American Indians on the Federal Bench

Matthew L.M. Fletcher3 Comments

Here is the article. An excerpt:

In the nation’s history, only two Native Americans have ever been confirmed by the Senate for a job on the federal bench. Two. And of those two only one was “openly” Native American at the time of his confirmation (that judge, Frank Howell Seay, found out about his Indian heritage long after he was on the bench). Those numbers are particularly appalling when you consider that (only) 170 or so black judges have been appointed over the same span.

Today, the Senate has before it the nomination of a man named Arvo Mikkanen, who is partially of Native American descent. Mikkanen went to Dartmouth College and Yale Law School, clerked for two federal judges, and has been a federal prosector for nearly two decades. He received a “unanimously qualified” rating from the American Bar Association. President Barack Obama nominated him to fill a seat on the federal trial bench in Oklahoma.

Yet there have been no speeches in the well of the Senate on behalf of Mikkanen. No senators have patted themselves on the back for breaking through another barrier of bias and bigotry. Instead, the Mikkanen nomination languishes in silence, six months after the President first put it into play. No hearing date has been set for his nomination even though other candidates nominated before him already have been approved out of Committee.

Oklahoma’s Congressional delegation was quick to denounce Mikkanen’s candidacy as “unacceptable” but to this day has never (publically, anyway) explained why. Meanwhile, the White House appears to have expended no political capital in pushing Mikkanen’s nomination to the forefront of the battle between the branches over judicial nominees. Like so many of his predecessors, Mikkanen has been left twisting in the wind by the U.S. government.

 

 

D.C. Circuit Nominee Argued Sherrill v. Oneida on Behalf of N.Y. State in Supreme Court

Matthew L.M. Fletcher1 Comment

Caitlin Halligan argued on behalf of the State of New York (argument is here). She is an Obama nominee to the D.C. Circuit (and apparently authored a law school note that may or may not be controversial). This is not to imply an objection to her candidacy, but to note her experience in Indian law.

Update: Ironically, even Ms. Halligan declined to take advantage of Justice O’Connor’s suggestion that tribal sovereignty could be lost through the passage of time. Here is the beginning of her argument:

Argument of Caitlin J. Halligan

Mr. Halligan: Justice Stevens, may it please the Court:

The state of New York was granted time to address the third question regarding the 1838 treaty which we believe requires reversal of the decision below because it disestablish the Oneida reservation.

Respondents claim that there is not exercised sovereignty over any part of land they buy within a vast 300,000 tract in Central new York.

This has long been inhabited–

Justice O’Connor: Is sovereignty something that the tribes can lose by inaction over a period of time?

Mr. Halligan: –I believe that it is, Your Honor, for the reasons that are laid out in petitioner’s brief but regardless of what the Court decides about that question, the Treaty of 1838 clearly disestablishes the reservation which terminates all sovereignty prospectively.

The argument from there is largely treaty-based.

ABA: Race & Gender Make Large Differences in Judicial Decision-Making

Matthew L.M. Fletcher

Why Indian Country must continue to press President Obama on federal judicial nominees….

From the ABA via How Appealing:

A judge’s race or gender makes for a dramatic difference in the outcome of cases they hear – at least for cases in which race and gender allegedly play a role in the conduct of the parties, according to two recent studies.

The results were the focus of a program about “Diversity on the Bench: Is the ‘Wise Latina’ a Myth?,” sponsored by the ABA Judicial Division at the ABA Midyear Meeting in Orlando on Saturday afternoon.

In federal racial harassment cases, one study (PDF) found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American. Continue reading →