What is going on regarding the nomination to fill Judge Bataillon’s spot on the District of Nebraska?

In October of 2014, Senior United States District Judge Joe Bataillon, following the tradition in this district, took senior status soon after he was eligible. See here. More than a year before, and on September 23, 2013, he gave advance notice of his intention. See here.

The two Republican Senators from Nebraska then conducted interviews of those interested in filling the spot. Those who were interviewed included lawyers who belonged to the Democratic Party and those who belonged to the Republican Party.

On August 18, 2014, the Senators sent their recommendation to the White House. They suggested Bob Rossiter*, a nominal Republican, who is supremely well qualified by any measure. For example, as I wrote last year after hearing of the Senators’ recommendation:

Rossiter is 58 years old. He graduated from the Creighton Law School with honors. He was the Executive Editor of the law review. He served as a law clerk to a federal trial judge (Judge Beam, who is now a senior Circuit judge). He is the only lawyer in Nebraska who is both a fellow of the American College of Trial Lawyers (State chair 2012-2014) and the American College of Labor and Employment Lawyers. He has tons of federal trial experience. He is highly regarded by his peers. He was elected and served as the Chair of the Nebraska State Bar Association House of Delegates. Recognizing his prior service to the NSBA, Bob has now been selected as President-Elect Designate of the Association.

Rossiter is not an ideologue or a partisan. Moreover, as I wrote last year in August:

Bob’s commitment to his community and church include service as a member of the Board of Directors of Girls Incorporated of Omaha, service as a member of the Board of Directors of Catholic Charities of Omaha, and service as Parish Council President of the St. Wenceslaus Parish.


I know the ABA’s Standing Committee on the Federal Judiciary has done its background work because an ABA representative contacted me long ago. There has been more than enough time to conduct an FBI full field investigation and I would be astonished if the White House did not have that in hand by now.

time-passages-imageGiven the present state of affairs in Congress, even if a nomination happened tomorrow, we wouldn’t be looking at a Senate vote anytime soon. For example, let’s take two comparable cases.

Utah Supreme Court Justice Jill Parrish, nominated last September by President Obama, with the support of the state’s Republican Sens. Orrin Hatch and Mike Lee, was confirmed by a vote of 100-0 on May 21, 2015. The same held true for Texas state judge Jose R. Olvera Jr. He was also nominated in September of 2014 and he also had the support his state’s GOP Sens. John Cornyn and Ted Cruz. He also had to wait until May 21, 2015 when he was confirmed by a vote of 100 to 0.

What is delaying the nomination of Mr. Rossiter? Surely, it couldn’t be rank partisanship. So, what gives?


*Open this link with Microsoft Explorer.

PS. I write this post solely on my own without any prodding or suggestion by anyone. I can’t remember the last time I spoke to Mr. Rossiter. In no way, shape or form has this post been generated at the hands of Rossiter, any of his colleagues or, for that matter, by anyone else. There has been no wink. There has been no nod. Besides, I am too old to see those things.

23 responses

  1. I like Bob too much to say anything negative, but nominal Republican means not active in the party and says nothing about ideological commitment. However most District Court Judges do not get that many politically charged cases, though you did.

  2. If he is “not active in the party” and perhaps does not display “ideological commitment”, as you say, then that is a favorable feather in his cap in my humble opinion, and that goes for Democrats AND Republicans. Litmus test judges are not my idea of good jurispurdence, but I know that is a naive view. Oh well . . . . .

  3. repentinglawyer,

    Two things.

    First, I have known Rossiter since he clerked for Judge Beam 30 years ago. Not once I have I heard him express any opinion that would suggest that he is either hard right or hard left. He is a lawyer’s lawyer and has a deep reverence for the sanctity of the legal process.

    Second, I know the names of the six who were interviewed, but I will never reveal the other five names. Using the ABA rating standard,

    *Two were clearly unqualified in my opinion.

    *One was qualified in my opinion.

    *In addition to Bob, two others were well-qualified.

    *Rossiter is the pick of the litter by any fair minded and objective measure.

    The foregoing having been said, that is why I am befuddled by the inaction of the White House.

    My sole interest in the nomination is to avoid the appointment of a bozo as contrasted with the appointment of the best and the brightest. (Indeed, that is among the reasons why I took senior status when I did so President Obama could make the pick and Senators Nelson and Johanns acted in an entirely nonpartisan way when they recommended Judge Gerrard.) I care deeply, as I know you know, about our court. It has a superlative reputation because of the nonpartisan way both Democratic and Republican Senators have behaved in the past when it comes to judicial nominations to our court. Indeed, in large measure, I owe my appointment to two Democratic U.S. Senators.

    This is perhaps more than you wanted. But since I greatly respect you, I thought I should particularize my response to your comment.

    All the best.


  4. I have wondered the exact same thing. The only things I can think of the Senate is too busy taking vacations or Deb and Ben are not lighting any fires under Chuck. I am really disappointed with Grassley on this considering that he is from Iowa. Maybe it is a Hy-Vee trophy thing.

    In any event, Bob should be on the job tomorrow. Nebraska needs him and I am not talking about Cornhusker football.

    In full disclosure I have known Bob and his wife longer than Kopf. I still think the wrong lawyer in that house got picked.

  5. Let’s think about this. Maybe the White House has no interest in nominating someone while the Senate is not treating other nominees fairly. If I were the President, I might well take that approach — and let the majority party know.

  6. Judge:
    This is from left field but could it be that a senator is in a snit and threatened to put a “hold” on the nomination if it’s sent to the Senate (thereby causing the White House to hold off?)? Unfortunately, politicians are not above such petty conduct. We had something similar happen here in New York in the late 80’s when a lawyer was nominated to the Second Circuit. The guy was unanimously approved by the Judiciary Committee and thought to be a lock for confirmation but an unknown senator placed an anonymous hold on his nomination. The result was that he never got a chance for an up or down vote and, when a new president was elected, another person was nominated for the position.

  7. Norm,

    I appreciate your speculation. That said, one would hope our President is above such petty pay back, particulary for potential district judges who, in the past, were typically considered noncontroversial when supported by both home state Senators. All the best.


  8. Robert,

    It is more likely that the White House is the subject of lobbying by local dem. operatives who are pissed that one of their own was not selected. If my speculation is correct, one would hope that someone at the White House would have the balls to utter my favorite acronym, STFU.

    All the best.


  9. Robert’s speculation might be onto something other than the fact that January 2017 is a long time away and Clinton is no lock. The Dems would be foolish to try to slow routine judicial business in a tiny state.

    The above being said, the Dems stalled Jim Mitchell’s nomination and JJ Exon (I think) was behind it.

    This is a perfect example of our dysfunctional government. If Bob Rossister, Jr. can’t be nominated and confirmed in short order how are we every going to fix our broken tax code or stop Iran from getting nukes?

  10. Your Honor, you said, “[w}hat is delaying the nomination of Mr. Rossiter? Surely, it couldn’t be rank partisanship. So, what gives?”

    Are you kidding…us, me, them, yourself or all of the above? It _COULDN’T_ be? Oh, hell, yeah, it could, and likely is.

    My humble suggestion remains the same: until honorable people demand that our honorable judges are, in fact, deserving of the honorific, we have a problem. You have spoken some truth to power. It may be time to at least consider shouting some truth. From what I can tell, you are an honorable man, as this profession goes. Likewise, you clearly care about your friends and family, and I suspect, your legacy as it pertains to them. You are in the somewhat-unique position to critique, as well as help and urge reform. If I may be so bold, use that, use it often, and use it well. And if I may be even bolder, you are a federal f’ing judge – be that, your Honor. Not the title as that seems to be easy; no, I suggest the ideal – that seems to be the difficulty. We – every US citizen – need that desperately.

    With utmost respect, a citizen.

  11. Oliver W.T. Holmes,

    Thanks for the kind words. I will do my best, sometimes, perhaps, behind the curtains. And, I must remember the doctors’ creed, “First, do no harm.” All the best.


  12. Anon.,

    You know a lot about the politics of nomination in Nebraska, ala Mr. Mitchell. Interesting “fun” fact.

    The President and our US Senators and the Judiciary Committee can rise above the gridlock, at least for our “tiny” state, if only well intentioned men and women act in good faith and without regard to politics and payback. While agnostic on most things, on this matter, I have hope that Rossiter’s sterling qualities are enough to trump the crass motives of others.

    All the best.


  13. Here’s the political solution. Either Obama formally nominates Rossister and no Dem puts a hold on him or the Unicam passes the winner take all Electoral College bill that was introduced last session.

    Fair trade.

    The citizenry gets a hardworking judge to move judicial business and the Dems get to keep the possibility of winning a single Electoral College vote in 2016 from our tiny state.

  14. FWIW:

    Senate Republicans have been slow-walking President Barack Obama’s judicial nominees all year. It looks like things are about to get even less productive.

    Senate Majority Leader Mitch McConnell (R-Ky.) said Thursday that he doesn’t expect to confirm any of Obama’s circuit court nominees for the remainder of his time in office, a blow to White House efforts to fill empty federal court seats despite working with a Republican-controlled Senate.

    (Lib Long & Prosper)

  15. There is no one at the White House with balls enough to do the right thing on anything these days. We are suffering a leadership vacuum in D.C. at 1600 Penn. Ave, and on “the Hill”. Perhaps the worst I have seen in my 65 years of consciousness.

  16. I was actually questioning the equation of political activity with nasty partisanship though I think that is more common than it used to be. I was thinking of both Judge Ross who had been active in politics and Judge Beam who had been a R Gov.’s lawyer adviser, neiterh of who were much moved by party politics as judges.

  17. The Judiciary deserves this. See Cogswell v. United States Senate, No. 09-1134 (10th Cir. Dec. 2, 2009). When judges become proxies for their respective factions, the needs of the faction outweigh the needs of the people, and justice is rationed.

    If our Celebrity Justices had found that we had a right to meaningful access to the courts, McConnell’s refusal to do his job would be actionable. Bob Rossiter is yet another predictable casualty of their judicial activism.

  18. The pro se plaintiff in Cogswell went to Georgetown so I am not allowed to discuss the case.

  19. Dredd,

    A Politco article also recounts that: “‘So far, the only judges we’ve confirmed have been federal district judges that have been signed off on by Republican senators,’ McConnell told conservative radio host Hugh Hewitt, adding that it was ‘highly likely’ it would remain that way for the rest of the 114th Congress.” Since Mr. Rossiter has the support of both Republican Senators, all is not yet lost. It appears that his chances depend upon whether the President will nominate him in the face of the Majority Leader’s statement.

    All the best.


  20. Anonymous (former law clerk) — again I am old enough to recall the days [let’s just say pre-1990s] when the concept of judicial appointments was truly an “advise and consent” process by the Senate.

    An honest citizen will blame both parties for kowtowing to their political powers and donors by turning the confirmation process into a litmus test for the use of the judiciary to not just interpret the law, but to fashion it into the vision of both parties’ failed legislative processes. It has only emboldened Congress to endure stalemate longer and allowed the parties to become more entrenched — heck, why bother passing laws if you can get the courts to do it for you.

    Its a sad day that this has become the norm. Its even sadder that the judge I clerked for was himself a victim of the same partisan process. He only managed to make it to the appellate court because of a change in the Senate balance. Heck, even Tip O’Neill let most of Reagan’s nominees get a vote. Not so during the Clinton era, Bush era, and now, Obama era. And its only getting worse. I fear that the district courts are next. Or maybe I am too jaded.

    Judge — I think that the breed of lawyer and non-partisan wonk that you are would be hard pressed to be confirmed in this day and age. Sad indeed.

  21. Ah. I guess I was drinking too much earlier. Last point was a little off — Bob Dole was the Senate Majority leader — probably explains why Reagan’s nominees were relatively unscathed (except Bork). Have no reason why I was thinking Tip O’Neill.

    I still think the judicial gridlock is a more recent vintage. But could be similarly under the influence of whiskey.

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