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Two of the 11 seats on the Seventh Circuit Court of Appeals are vacant, including the single oldest circuit court vacancy in the country. The Wisconsin seat previously held by Judge Terence T. Evans has been vacant for over six years. Another seat in Indiana has been empty since Judge John Daniel Tinder took senior status more than ten months ago. The result is a court that must resolve the major constitutional issues of our day—guns, abortion, voting rights, healthcare—while working shorthanded.
To address this critical need, and after lengthy consultation with the senators from each state, President Obama nominated Donald K. Schott in Wisconsin and Myra C. Selby in Indiana. Schott, a litigator with more than 30 years’ experience, was approved last spring by the bipartisan selection commission that Wisconsin Senators Ron Johnson and Tammy Baldwin established. That commission was created after Johnson blocked the nomination of Victoria Nourse, who the president nominated to the Judge Evans vacancy in 2010 before Johnson took office in January 2011. Johnson argued that as a newly-elected senator he should be consulted on nominations for Wisconsin’s federal judgeships. Johnson also delayed the consideration of Seventh Circuit applicants by the commission until July 2014, two years after Nourse’s nomination was withdrawn.
Selby, now in private practice, was both the first woman and the first African American ever to serve on the Indiana Supreme Court. Nominations made, it now falls on the Republican-controlled Senate to fairly consider the nominees, restore the Seventh Circuit’s full complement of judges, and uphold the promise of access to justice for all Americans.
The Seventh Circuit has appellate jurisdiction over the federal district courts in Illinois, Indiana, and Wisconsin. Because the U.S. Supreme Court hears so few cases, the Seventh Circuit, like all federal courts of appeals, often has the last word on important questions of federal law. Working short-staffed over the last two years, the Circuit issued major constitutional rulings in favor of the Affordable Care Act, an assault-weapons ban, and a woman’s right to choose. At the same time, though, the court also recognized the religious rights of secular, for-profit corporations, upheld a right-to-work statute that inhibits the ability of labor unions to collectively bargain, and reinstated a voter ID law that had been enjoined to prevent the disenfranchisement of minority voters.
Rulings that limit minority voting rights and threaten access to federally-guaranteed contraception reflect the court’s lack of racial and gender diversity, as well as a lack of professional diversity in judges’ careers prior to joining the bench. Judge Ann Claire Williams is the only African American ever to serve on the court, and the court has never had a Hispanic, Asian American, or openly LGBT judge. Judges from Wisconsin and Indiana have been exclusively white, and there have been no female judges from Indiana. In fact, only four out of 55 total judges to serve on the Seventh Circuit have been women. If confirmed, therefore, Selby would be the first African American and the first woman from Indiana to serve on the court. The Seventh Circuit’s judges are also the oldest of any circuit court in the nation; their average age is five years older than that of the second-oldest court. All but two of the nine judges are eligible to leave active duty for senior status or retirement, and four of the nine are above the age of 75. Finally, none of the court’s judges have substantial experience representing individual plaintiffs, indigent criminal defendants, or public interest organizations.
Longstanding vacancies often result in delays that mean justice is denied entirely. Vacancies can also determine whether fundamental constitutional rights are protected or not. Consider the 2014 voter ID case that went before the Seventh Circuit. The district court had enjoined Wisconsin’s voter identification requirement after finding that it “results in the denial or abridgment of the right to vote on account of race or color,” and that defenders of the law “could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.” But on September 12, 2014, a panel of three Republican-appointed judges lifted the district court’s injunction. Then on September 26, the full Seventh Circuit divided evenly, five to five (Judge Tinder was still on the court) and denied the plaintiffs’ request to review the panel decision en banc. Had the Supreme Court not intervened and reinstated the injunction, hundreds of thousands eligible Wisconsin voters would have been disenfranchised during the November 2014 elections. Were Judge Evans still on the Court, he could have cast the deciding vote to review the case, and likely would have. “Let’s not beat around the bush,” Judge Evans wrote when confronted with a similar Indiana law in 2007, the “voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic.”
The Supreme Court enjoined Wisconsin’s voter ID law pending review, but it ultimately declined to decide the case, and now one of the nation’s most restrictive voting laws might determine who Wisconsin elects for president and U.S. Senator. In May 2015, voting rights organizations challenged a host of recently-enacted Wisconsin election laws including the voter ID law, asserting that the laws are intended to suppress the votes of African Americans, Latinos, the young, and the poor. The district court, while granting a motion to dismiss the voter ID claim under the Seventh Circuit’s prior decision, “express[ed] skepticism at the notion that voter ID laws promote confidence in elections” as the Seventh Circuit accepted. The case is set for trial in May 2016 and could be before the Seventh Circuit later this year.
In this report, the Seventh Circuit’s nine active judges and their recent judicial records are profiled in order of seniority. The pending nominees are also profiled.