Updated March 5, 2021 - 2:42 pm
WASHINGTON — President Joe Biden is urging Democrats to send nominees for federal district judgeships, and Nevada’s senators are moving quickly to fill two spots considered to be emergency vacancies.
One potential candidate is senior state Judge Jennifer Togliatti, nominated for a federal judgeship during the Trump administration but denied a confirmation vote in the Senate by then-Majority Leader Mitch McConnell, R-Ky.
“She’s still interested so we will be putting her name forward,” said Sen. Catherine Cortez Masto, D-Nev.
Togliatti was one of several nominated jurists who did not receive a vote in the Senate — considered by blue state senators as a political snub by McConnell, even though the candidates were nominated by former President Donald Trump.
Another Nevada nominee never confirmed is Anne Traum, a UNLV law professor tapped by then-President Barack Obama for a federal district judgeship but blocked by then-Sen. Dean Heller, R-Nev., and McConnell.
McConnell halted judicial confirmations following the death of Associate Justice Antonin Scalia in 2016, a gamble that paid off for his party when Trump won the presidential election and Obama was denied the appointment of appeals court Judge Merrick Garland.
After Trump won, McConnell made it a priority to fill vacancies created by his efforts to stop Obama judicial appointees.
Although home-state senators have the power to select and reject candidates for U.S. District Courts, each state determines how to pick people to send to the White House for consideration.
Cortez Masto and Sen. Jacky Rosen, D-Nev., have created two judicial commissions, one in the north and the other in the south, to help select candidates to recommend to the White House.
Nevada senators publicly asked for applications earlier this year.
Traditionally, senators send several candidates to the White House for consideration and background checks before a final candidate is chosen to be nominated by the president.
“We are close to finalizing the composition of the commissions and they will begin the selection process shortly,” Rosen said.
The senators were mum on candidates other than Togliatti because the selection process is ongoing. Even if Togliatti is recommended, she may not be nominated by Biden for an open Nevada bench.
Justice moving quickly
The attorney general and Justice Department also play a role in the administration’s vetting of candidates. Garland, nominated by Biden to be the attorney general, could receive a Senate confirmation vote as early as this week.
Cortez Masto said she spoke with Garland recently “and I know the administration is moving quickly to put people in these positions.”
Nevada has two vacant federal judgeships out of seven seats. Rising caseloads and the length of time the seats have been open led to the “emergency” classification by the Administrative Office of the U.S. Courts.
Nationally, there are 59 district court and four appellate seats vacant, with more expected as judges elect to take senior status, said Carl Tobias, a University of Richmond School of Law professor and a founding faculty member of the UNLV Boyd Law School.
During the Trump administration, McConnell was able to confirm 174 district judges and 54 appellate jurists, as well as three associate justices to the U.S. Supreme Court.
With Democrats holding the majority in a 50-50 Senate with Vice President Kamala Harris as the tie-breaking vote, Biden has a tight window to nominate judges whom the Senate can confirm to federal courts before the midterm elections of 2022.
Judicial selection has largely been a partisan exercise. Rosen said the commissions set up by the senators in Nevada to select potential candidates are made up of both Democrats and Republicans and will consider all applicants regardless of political affiliation.
But Biden has said he wants to provide balance and a federal judiciary that better reflects the demographics of the country following the Trump administration and the appointment of conservative jurists.
“It’s important to counter that,” Tobias said. “Some have very conservative ideological views.”
Nevada candidates already vetted
Tobias said recommendations by the Nevada senators of Togliatti and possibly Traum could expedite the process and lead to quick confirmation because both have been previously vetted. Togliatti also received a Senate Judiciary Committee vote before her nomination languished in the full Senate.
Former Sen. Harry Reid, D-Nev., recommended Traum, and Obama nominated her to the federal seat before McConnell put the brakes on the process to block the Garland nomination for Supreme Court.
“They would be very strong candidates,” Tobias said of Togliatti and Traum.
Trump nominated Togliatti for a federal district judge seat that has been vacant since 2018, when Judge James Mahan took senior status. She was supported by Cortez Masto and Rosen.
Besides the vacant Mahan seat, Judge Robert Clive Jones took senior status in 2016, a bench vacant for four years in Northern Nevada. Traum was nominated by Obama to fill the seat held by Jones. The seat remained open and Trump did not nominate anyone for it.
McConnell has taken pride in his record of filling judicial vacancies that were backlogged after Republicans blocked Obama nominees in his final years as president.
Last year, McConnell said the GOP-led Senate action to fill a rash of judicial seats with conservative nominees has been “an important contribution to the future of this country.”
But Tobias said it was obvious that McConnell was favoring red states over blue states as he scheduled confirmation for justices and administrative appointees.
And Biden has made clear that he plans to aggressively fill judicial vacancies, like those in Nevada.