WASHINGTON — President Donald Trump and the Republican majority in the U.S. Senate have put a heavy emphasis on federal judgeships in their first year in office, confirming a record number of appellate court judges and powering through hearings on nominees for lower courts.
In Louisiana, however, the vacancies on the federal bench and in the state’s three U.S. attorneys' offices head into the new year unfilled. The White House has named nominees for more than half of the openings for judgeships or U.S. attorneys in Louisiana — and several judicial nominees have appeared for hearings before the Senate Judiciary Committee — but none has been confirmed yet.
The pace reflects the high priority Senate Majority Leader Mitch McConnell, R-Ky., and Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, have placed on confirming judges to the nation’s appeals courts, which wield considerable influence and are the final legal stop beneath the U.S. Supreme Court.
“I don’t believe the fact that Louisiana nominees didn’t get approved in 2017 is a telling sign, strictly because it looks like the Trump administration and particularly White House counsel focused more on circuit court judges and not the district court judges,” said Harry Rosenberg, a former U.S. attorney in New Orleans who’s now a partner at the Phelps Dunbar law firm.
It’s also an indication of the escalating political battles on Capitol Hill over appointments to the federal courts, as Senate Democrats have deployed a number of procedural ploys to slow down nominees. Republicans have accused Democrats of obstruction, while Democrats have raised concerns that some of the president’s picks haven’t been adequately vetted.
Republicans used some similar tactics during Barack Obama’s presidency and refused to consider Merrick Garland, Obama’s nominee to fill the late Antonin Scalia’s seat on the U.S. Supreme Court, a move that enraged Democrats.
A spokesman for Louisiana Sen. Bill Cassidy told The Advocate that Cassidy is working with Trump to see good federal judges nominated in Louisiana and “will continue pushing the Senate to confirm them in a timely manner.”
He added, “Unfortunately, as long as Democrats continue to delay these nominees just for the sake of delaying them, the people of Louisiana will be denied a fully functional judicial system.”
There are seven vacant judgeships in Louisiana’s federal district courts, which handle trials for federal lawsuits and criminal matters, with two openings in New Orleans and five in the sprawling Western District, which includes federal courthouses in Lafayette, Alexandria, Shreveport, Monroe and Lake Charles, and covers 42 parishes.
Trump has named two men to traditionally Louisiana seats on the 5th Circuit Court of Appeals, which hears cases from Mississippi and Texas in addition to Louisiana: Kyle Duncan, an LSU law school graduate who’s built a prominent career as a D.C.-based litigator on conservative social issues, and Kurt Engelhardt, a federal district judge in New Orleans.
The Senate Judiciary Committee already has held a hearing for Duncan and is expected to vote on his nomination in the coming weeks. No hearing has been scheduled yet for Engelhardt. Duncan’s high-profile legal work — including defending controversial abortion restrictions and challenging the Affordable Care Act’s mandate that employer-sponsored insurance cover birth control — have led liberals to raise loud objections over his nomination.
Both Duncan and Engelhardt, though, appear likely to be confirmed by the Senate eventually. Sen. John Kennedy, R-La., initially questioned whether Duncan had sufficient ties to Louisiana but has since pledged to vote for him.
Objections by at least one U.S. senator sent the nominations of both Duncan and Engelhardt — along with Western District nominee Michael Juneau and Eastern District nominee Barry Ashe — back to the White House when Congress adjourned for the Christmas break.
The move will cause potential paperwork headaches for the four but won’t derail their nominations or cause any major setbacks, said Carl Tobias, a law professor at the University of Richmond in Virginia who tracks federal appointments.
In the state’s three U.S. attorneys' offices, career federal prosecutors have stepped into interim positions to keep the offices running. The U.S. attorney positions are political appointments and are generally replaced after a new president takes office.
Trump has nominated Brandon Fremin, head of the criminal division for Louisiana Attorney General Jeff Landry, for the U.S. Attorney’s Office in Baton Rouge. Fremin would succeed former U.S. Attorney Walt Green — an Obama appointee — and replace Corey Amundson, a career prosecutor who has served as interim U.S. attorney since Green’s departure in the spring.
The president hasn’t named a choice to fill the other two U.S. attorney positions in New Orleans and in the Western District. But multiple sources have previously told The Advocate that Peter Strasser, a partner at the Chaffe McCall law firm and former federal prosecutor, is expected to be named to the job in New Orleans.
The growing number of vacant judgeships in the Western District has put a major strain on the court, stretching the two remaining full-time federal district judges and prolonging cases.
Following the retirement of U.S. District Judge Dee D. Drell of Alexandria in November, the Western District now has five openings.
Two nominees, Juneau and Terry Doughty, are awaiting confirmation in the Senate. Juneau would work out of Lafayette, while Doughty would hear cases in Monroe. The president has not yet named anyone for the other three openings.
“If we can’t get a full complement in the immediate future, just getting the two nominees confirmed by the Senate would be of tremendous help,” said U.S. District Judge S. Maurice Hicks Jr., the district’s chief judge.
Hicks said federal magistrates and four senior-status judges, including Drell, have helped pick up the load in the meantime.
“There’s a compelling need to start filling those slots in the Western District,” said Rosenberg.
In the New Orleans-based Eastern District, Ashe, a veteran attorney with the Stone Pigman firm, is awaiting a confirmation hearing. Trump has not named a nominee for the second vacancy but, as The Advocate reported earlier this year, is expected to tap Wendy Vitter — the general counsel for the Archdiocese of New Orleans and the wife of former U.S. Sen. David Vitter, R-La. — for the job. Cassidy, whose office vetted candidates for the judgeship, also submitted the names of Thomas Flanagan and Jay Wilkinson to the White House, sources told The Advocate.
If Engelhardt is confirmed for a seat on the 5th Circuit Court of Appeals, it would create a third open judgeship on the New Orleans-based federal district court.