The recent death of Federal District Court Judge Rudolph Randa leaves Wisconsin’s federal courts with a second vacancy that, with the current state of politics, could take longer than usual to fill.
That’s the opinion at least of two law professors: Chad Oldfather of Marquette University and Charles Geyh of Indiana University.
Randa died last week at the age of 76 following a battle with cancer that had sent him into semi-retirement in February.
His appointment to the federal bench, made by George H.W. Bush, came in 1992. Before that, he had worked in the Milwaukee city attorney’s office and as a judge in state trial and appeals courts. Randa had also served in the Army for two years during the Vietnam War, earning a Bronze Star.
His death leaves an open seat in the Eastern District of Wisconsin, which has positions for five judges. In total, there are three vacancies among all the federal district courts that feed into the 7th Circuit Court of Appeals (besides the one in Wisconsin, there are two in Indiana.) The Chicago-based 7th Circuit Court of Appeals also has an opening in a seat usually held by a judge from Wisconsin.
In keeping track of appointments to various benches, observers of the country’s judicial system have generally come to expect federal appointments to take longer than state appointments. One reason for this is that federal judges, including those who sit on the federal appeals courts, the U.S. Supreme Court and the district courts, are nominated by the president and confirmed by the U.S. Senate. The system creates an opening that lets the often-rancorous partisanship of national politics spill over into the courts.
Wisconsin and 18 other states also use a nomination committee to vet candidates for the federal bench, a procedure that likewise adds to the time it takes to fill an opening on a federal bench. When it comes to filling vacancies on state courts, though, Wisconsin leaves the choice solely to the governor, who has no need to get a confirmation vote from lawmakers. About the only impediment to quick appointments in this system is the difficulty of finding qualified and willing candidates.
Beyond the ease of filling vacancies on state and federal courts, it’s also possible to differentiate among various sorts of federal courts, says Oldfather, a Marquette University law professor. Vacancies on federal district-court benches tend to be filled faster than vacancies on appellate benches.
One reason for the difference is the finality of many rulings from courts of appeal. Parties who lose in district court have a right to take their case to a court of appeals.
But if unsatisfied with the outcome at that next-highest level, they generally have few other options for recourse. The U.S. Supreme Court’s tendency to take only about 80 cases a year means the last word in most legal disputes comes from courts of appeal.
For that reason, one might expect the seat left open by Randa’s death to be filled relatively quickly.
“But given the state of presidential and senatorial politics, I’m less sure of that,” Oldfather said.
Geyh, a law professor at Indiana University’s Maurer School of Law, agreed that Randa’s former seat might take longer to fill than many now expect.
“The politics is confined to the Supreme Court and circuit courts of appeals,” Geyh said. “But the delays cut across the board.”
Randa was familiar with the power wielded by appellate judges. Some of his most noteworthy rulings were overturned when they reached the 7th Circuit’s appellate level.
In 2014, Randa handed down a ruling that placed a block on the secret John Doe probe that prosecutors had been conducting into the recall elections that roiled the state in 2011 and 2012. At the heart of the investigation were questions about whether Gov. Scott Walker’s campaign had illegally coordinated with outside groups in its work to prevent the governor and other Republicans from being recalled.
Taking up Randa’s decision to block the probe, the 7th Circuit dismissed the case, saying the matter belonged in the state courts. The Wisconsin Supreme Court eventually shut the John Doe investigation down in July 2015, finding that the type of coordination the prosecutors were trying to furnish evidence of was not criminal in the first place.
The John Doe case was not the only time Randa saw one of his decisions thwarted by the Court of Appeals. Four years before, Randa had handed down a ruling striking a blow at the “risk-contribution theory” — which was at the heart of several pending lead-paint lawsuits. The 7th Circuit reversed his decision in 2014.
The appeals court went on the following year to reverse Randa’s ruling that a $55 million cemetery trust fund should not be used to settle claims from sex-abuse victims who were involved in the Archdiocese of Milwaukee’s bankruptcy case.
Geyh said politics have always influenced the timing of judicial appointments but began to play a bigger role in the late 1980s. Democrats used their control of the U.S. Senate then to set a now seemingly inescapable precedent by denying federal Court of Appeals Judge Robert Bork to the U.S. Supreme Court. Bork had been nominated by President Ronald Reagan, a Republican.
“That created an enormous reservoir of anger within the Republican camp,” Geyh said.
The Republicans later retaliated by delaying appointments to lower-level courts, and the back-and-forth over federal appointments continues to this day.
But politics are only one reason for the ever-lengthening delays in judicial appointments. Geyh said the opportunity to appoint someone to Randa’s former seat has come in the midst of an age of extreme polarization in politics. Making matters worse, the vacancy has arisen at the end of a presidential term, a time when politicians in the opposite party often argue that important nominations should be left to whoever gets elected in November.
The U.S. Senate’s refusal to hold a confirmation hearing for Merrick Garland is a prime example of how politics continues to impede appointments to the federal judiciary.
Both Geyh and Oldfather also noted the unusual amount of time it has taken to a fill the now-open seat on the 7th Circuit that is normally reserved for a Wisconsin judge. The spot was formerly held by Judge Terence Evans, who took senior status in 2010 and died in 2011.
U.S. Senators Tammy Baldwin and Ron Johnson from Wisconsin agreed in January to recommend Donald Schott, a Madison lawyer, for the position and a U.S. Senate panel recently advanced his nomination. But he has yet to be confirmed.
While waiting for an open seat to be filled, federal officials have turned to various methods to try to prevent case back logs from growing out of control. Shorthanded courts, for instance, have been known to borrow judges from other jurisdictions.
Regardless, vacancies are harmful to clients, says Milwaukee criminal defense attorney Ray Dall’Osto.
“As a result of unfilled judicial seats, cases are extended, trials are put further out on the calendar and justice is delayed,” he said. “This affects equal access to justice for those with means, as well as for the poor.”
[follow id=”erikastrebel” size=”large” count=”true”]