Some thoughts on the Wendy Vitter nomination

I am quoted toward the end of this story on the nomination of Wendy Vitter to be a federal district judge in the Eastern District of Louisiana. As I pointed out in the story, the EDLA is down two full-time district judges and desperately needs people to step in and roll up their sleeves: the district has the second-highest number of pending cases in the country, and the sixth-worst number of trials completed during the last fiscal year.

The story emphasizes that many observers are happy with Vitter’s nomination — she has more than 100 criminal trials under her belt as a state prosecutor, and generally seems to be well-respected within the New Orleans legal community. Still, detractors raise three objections to her nomination: her lack of federal litigation experience, her marriage to a former U.S. Senator, and her Catholic faith.  None of these should derail her nomination.

The first objection is the most serious, and the subject of the article. Vitter has extensive trial experience at the state level, but appears as counsel of record in only one federal case. Can a lawyer with such limited federal experience be a competent federal judge?

I believe so. The issue is less about federal experience than trial experience, as I pointed out in this post. A district court judge simply must know her way around a courtroom and around a trial, and that requires intimate familiarity with the relevant rules of evidence and procedure. It is entirely possible for a lawyer (or judge) whose experience comes at the state level to work hard and get up to speed on the differences in federal practice. It is not possible, however, for a new judge with little or no trial experience to learn trial management on the job without causing harm to the parties.

Wendy Vitter’s trial experience is unquestioned. She can presumably adapt quickly to federal practice. And if she cannot, that weakness should come out at her confirmation hearings.

The second objection to Vitter’s nomination falls somewhere between silly and offensive. Yes, she is married to former U.S. Senator David Vitter. But to suggest that her spousal connections would affect her job performance is wholly without merit. It also implies that one member of a power couple must sacrifice his or her career ambitions for fear of creating an apparent conflict. Thankfully, other federal judges have shown that the general spousal conflict is nonsense. Gary Sebelius has managed to be a fine magistrate judge in Kansas, even as his wife served as governor of that state, and later Secretary of Health and Human Services. Jane Roth and Marjorie Rendell were well-respected judges on the Third Circuit even as their husbands served as U.S. senator from Delaware and Governor of Pennsylvania, respectively.

The final objection veers toward the offensive. Vitter is a Catholic, and since 2012 has served as General Counsel for the Roman Catholic Archdiocese of New Orleans. That has some suggesting (predictably, sadly enough) that Vitter’s faith will affect her decisions on issues such as abortion and gay rights. Leaving aside the fact that district judges almost always follow the prevailing law regardless of their personal beliefs, and rarely have a say on such issues anyway, the suggestion that a person of faith cannot be trusted to uphold the law because of her religious beliefs is a profoundly un-American sentiment.

The latter two objections are also indicative of a larger problem: the growing politicization of lower federal court nominations. A generation has now lived with near-obscene political grandstanding in the Senate over Supreme Court nominations: since Robert Bork in 1987, few Supreme Court nominees have emerged from hearings free from political spittle. These sad displays have now been extended to appellate and district court nominations, and no one is better off for it. Part of the problem rests with the President, many of whose nominees have been flawed, and whose refusal to allow the ABA to vet candidates prior to nomination only exposes these flaws. But the bulk of the problem lies with the Senate, which seems to see every confirmation hearing as an opportunity to score political points rather than assure that the federal Bench is populated with excellent jurists.

Wendy Vitter’s nomination should rise or fall on her qualifications, skills, and temperament. That is for the Senate to assess, and hopefully they will do that job with some semblance of care and respect for their constitutional role.


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