U.S. Sen. Ron Johnson says he wants equal representation on the Federal Nominating Commission to fill two judicial openings even though that would break precedent in Wisconsin.
U.S. Sen. Herb Kohl countered that it was a “great disappointment” that Johnson wanted changes to the commission’s composition.
When the state’s senators have been from different parties, the lawmaker whose party controls the White House has traditionally had five appointments to the body while the other senator has four.
But Johnson, R-Oshkosh, said giving him the same number of appointments as Kohl, D-Milwaukee, would increase the chances the candidates would win approval in the U.S. Senate.
“I sincerely hope that Senator Kohl does not decide to go on his own and recommend nominees without bipartisan input,” Johnson said in a statement to WisPolitics.com. “I continue to be willing to work with Senator Kohl to establish a balanced nominating commission. The people of Wisconsin chose a Republican Senator, which should entitle them to equal representation in the recommendation of judicial nominees to this Administration.”
President Obama previously nominated former state Supreme Court Justice Louis Butler to the Western District of Wisconsin and UW-Madison Law Professor Victoria Nourse to the 7th Circuit Court of Appeals. But the Senate, though with a Dem majority, didn't act on those nominations before the past session ended; Johnson had objected to both nominations being carried over after he took office in January.
Since then, Johnson and Kohl’s offices have been in discussions on a way to move forward on filling the vacancies by starting the process over through the Federal Nominating Commission, which the state has used to screen judicial applicants to recommendation to the White House.
Sources have told WisPolitics.com that Johnson and Kohl, who has announced he'll retire after next year, have been unable to reach an agreement on the commission’s composition.
Kohl noted the commission has been used to fill every judicial and U.S. attorney vacancy in Wisconsin since 1979.
“The Commission, whose structure is determined by a charter, has served our state well, through the tenure of Democratic and Republican senators and under both Republican and Democratic Presidents,” Kohl said. “So it’s been a great disappointment that Senator Johnson has sought significant changes to the Commission. We’ll continue to work to find a way forward that’s in the best interest of the people of our state.”
Johnson’s insistence on an equal number of picks as well as his decision to shut down both the Butler and Nourse nominations have irritated some in Wisconsin’s legal community.
Others, however, have countered Johnson shouldn't be bound by nominations that didn't get votes in the last session.
Still, the ongoing dispute over the commission’s makeup is making it increasingly unlikely either post will be filled, legal observers say.
Judge Barbara Crabb announced in March 2009 that she intended to take senior status. But she continues to hear cases on the federal bench in Madison as she awaits a successor to be confirmed.
Meanwhile, former Appeals Court Judge Terence Evans announced in August 2009 he planned to move to senior status. He passed away this past August.
With a presidential election in 2012, it’s unlikely the Senate will move quickly on judicial appointments. Combine that with Kohl’s lame duck status, and it may be 2013 before there’s any movement.
“Basically if they’re not filled by November, I don’t see those things getting filled,” said one observer.