If U.S. District Judge Ivan Lemelle had turned 65 a year ago instead of last month, things would have been so much clearer.
Lemelle celebrated his big birthday by filing for senior status, a form of semi-retirement that allows him to keep working if he wants to but also opens up his seat on the New Orleans-based Eastern District bench.
So now President Barack Obama has the opportunity to appoint a new judge. And that’s where things get complicated.
Until this year, when Obama had a seat to fill in Louisiana, he simply turned to Mary Landrieu, who was not only the state’s senior senator but also a fellow Democrat. That’s the way these things generally work. Federal judges hold exalted positions and enjoy lifetime appointments, but they’re also very much a part of politics’ spoils system.
Now that Landrieu’s out of office, though, the path to confirmation for any Obama nominee runs instead through David Vitter, the Republican who not only replaced her as senior senator but went to great lengths to orchestrate her 2014 loss to Bill Cassidy. Obama still has one local congressional ally, and U.S. Rep. Cedric Richmond may well get to weigh in. But it’s the Senate that confirms judicial nominees — or doesn’t — and Vitter’s seat on the Judiciary Committee only bolsters his influence.
This sort of situation could be a recipe for disarray. In fact, the last time we had a president from one party and two senators from another, it was.
After George W. Bush took office in 2001, he bypassed Louisiana’s two Democratic senators and sought recommendations for the Eastern District U.S. attorney opening from a handful of the state’s top Republicans. Unable to agree, they wound up forwarding several names to Bush for consideration. The White House eventually settled on landfill owner and big GOP donor Fred Heebe, who was the favorite of then-Gov. Mike Foster.
But Heebe’s nomination stalled amid allegations of domestic abuse, and the delay allowed interim U.S. Attorney Jim Letten, who had no major political sponsor, to solidify his hold on the job. In one of the great twists in local legal history, his office eventually would start investigating Heebe’s business dealings, Heebe would hire the lawyers who discovered that several top Letten assistants had a habit of leaving improper comments on nola.com, and the scandal would force Letten out of office. But that’s another story.
Before we return to this one, it’s worth remembering that Vitter played a bit part in pushing Heebe. Despite a rocky relationship with Foster, the then-congressman endorsed the governor’s pick for the job. What he appeared to get out of the deal was support for a judgeship for his close friend, Kurt Engelhardt.
What could dictate the future of Lemelle’s vacated seat is that Vitter’s got another friend in the mix. Claude Kelly, a longtime defense attorney and, since last year, the federal public defender for the Eastern District, goes way back with Vitter and his wife, Wendy. According to people in the legal community who follow these things, his name has quickly risen to the top of the list of potential nominees.
That doesn’t mean he’s a shoo-in. Few judicial nominees have won confirmation since Republicans took over the majority after last year’s electoral sweep, perhaps because GOP senators are pushing back on just about everything Obama does or perhaps because they think his picks are too liberal.
The White House may want to preserve what little diversity the bench had (Kelly is white, and Lemelle’s retirement leaves just one African-American judge on the bench). Or it may just not want to throw a bone to Vitter, who seems to take particular pleasure in opposing the president’s appointees, most recently new Attorney General Loretta Lynch.
There’s also the matter of timing. Vitter, of course, is hoping to leave the Senate and become governor in January, so if he wants to be sure to get the nomination through, it would have to be put on a fast track.
On the other hand, if Vitter wants something from Obama, that means Obama might be able to bargain for something in return. Maybe something like Vitter’s support for some other nominee somewhere.
It’s a fascinating prospect, the idea that Obama and Vitter could find common purpose on much of anything.
But as they say, elections have consequences. Just ask anyone on the federal bench.