Posted: Oct. 25, 2016; updated with new deadline: Oct. 26, 2016
JUDGE ROBINSON IS GOING, BUT IS ANYONE COMING?
By Celia Cohen
Somewhere in Washington, Merrick Garland is wandering in judicial limbo. Somewhere in Delaware, he might get company.
Sue Robinson is about to relinquish the judgeship she has had on the U.S. District Court here since 1991, and Tom Carper, the Democratic senior senator, has put out a call for applicants interested in filling the vacancy.
Robinson will be taking senior status in February 2017, as she turns 65, meaning she will move on to a semi-retirement, in which she handles a reduced caseload while continuing to receive her full judicial salary, currently $203,100 a year.
Carper wants names by Nov. 30, after he originally set Oct. 31 as the deadline for applicants. It has long been the custom in the Senate for its members to offer up judicial candidates in their state to be nominated by the president.
So far, so good, but it does not take a constitutional scholar to know the road to hell is not just paved with good intentions. Sometimes all it takes is a judicial nomination.
Look at Merrick Garland, roaming like some chained-up ghost of the Supreme Court-future.
Garland was nominated in March to replace Antonin Scalia, the justice who died suddenly the month before, but the Republican-run Senate has wanted no parts of any appointee of a Democratic president in his last year in office, not when it could cause a conservative seat to swivel away and reset the balance on the high court.
The U.S. Constitution might be all about advising and consenting, but the politics is about devising and circumventing.
More than the Supreme Court has been caught in this messy standoff. So have the district courts, which have 78 judgeships vacant around the country and 44 nominations pending, and now Delaware is about to have an opening, too.
The judges get lifetime appointments, but since when did they have to wait a lifetime to get them?
Chris Coons, the state's other Democratic senator who is also a lawyer, has been in the thick of it as a member of the Judiciary Committee and also the Appropriations Committee. He does not want to have the federal court in Delaware strained by a lingering vacancy, especially since it is so overworked now that he has been trying to have a new judgeship added.
"Naturally most folks are only aware of the vacancy for the Supreme Court. I fear also for the appeals courts and the district courts and the bankruptcy courts," Coons said.
It matters what happens to the federal court here. Not only would justice delayed be justice denied if it was down a judge, but the court contributes significantly to Delaware's reputation for business law as a preferred forum for patent cases.
The court has only four judges, namely, Len Stark, the chief judge, along with Robinson, Greg Sleet and Richard Andrews, and Robinson has long been a stalwart of this bench, where she is its most senior member.
As Stark wrote in the court's annual report earlier this month in recognition of Robinson and her approaching senior status, "Judge Robinson is one of the most respected and experienced district judges in the country."
By the time Robinson steps aside, there will be a new president and a new Congress.
It could change things, particularly if it flips control of the Senate to the Democrats and brings a gavel to Coons.
"I am optimistic that in the new Congress I will be chairing the Judiciary subcommittee on the courts, and I will be able to push for the filling of this vacancy and a fifth judgeship," Coons said.
It beats the judicial purgatory of waiting for a confirmation that never comes.