Under normal circumstances, Donald Trump’s loss in the 2020 election would have brought to a blissful end his time to nominate judges. But having ignored Senate norms for nearly four years in office, neither he nor Senate Majority Leader Mitch McConnell is prepared to start respecting them now.
Traditionally, the Senate does not confirm judges during the lame-duck period between a presidential election and when the new president and new Congress are seated in January. It’s been that way for 123 years. McConnell doesn’t care, though. He bragged to conservative radio host Hugh Hewitt in October that he would “run through the tape” and push confirmations through the end of the year. Notably, McConnell isn’t “running through the tape” when it comes to getting a COVID-19 stimulus bill through Congress. That’s just not important to him.
One of those lame-duck appointments McConnell is pushing is Thomas Kirsch II, the U.S. attorney for the Northern District of Indiana. Kirsch has been nominated to fill Justice Amy Coney Barrett’s seat on the U.S. Seventh Circuit Court of Appeals. The Chicago Council of Lawyers, which evaluates judicial candidates, noted that appellate confirmations usually take several months, at minimum; McConnell is giving Kirsch’s confirmation process just a couple of weeks.
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By the low standards of Trump judicial nominees, Kirsch is fine. Unlike Kathryn Kimball Mizelle or Sarah Pitlyk or Justin Walker, Kirsch has had a lengthy, high-profile legal career. He served as an assistant U.S. attorney for seven years under George W. Bush, spent nine years in private practice afterward, and was nominated to become the U.S. attorney for the Northern District of Indiana in 2017.
It’s entirely unsurprising that Kirsch is a white male and will join the all-white Seventh Circuit bench. Trump’s judicial picks have been overwhelmingly white and overwhelmingly male. As the Alliance for Justice points out, Kirsch will be taking a seat where the GOP explicitly blocked a well-qualified Black woman, Myra Selby—nominated by President Barack Obama—from even getting a hearing in 2016.
Kirsch has also already displayed the sort of moral flexibility that has become the hallmark of Trump judges. After being sworn-in as the U.S. attorney for the Northern District of Indiana, he vowed to fight public corruption, ostensibly continuing his work as an assistant U.S. attorney during George W. Bush’s administration. In that job, Kirsch specialized in white-collar investigations and prosecutions. When he went into private practice? Kirsch then specialized in representing white-collar defendants accused of major crimes.
While in private practice, Kirsch defended William Cellini, one of over a dozen people convicted as part of former Illinois Gov. Rod Blagojevich’s expansive extortion schemes. Cellini, who was convicted of conspiracy to commit extortion and aiding and abetting the solicitation of a bribe, wasn’t part of Blago’s infamous scheme to sell Obama’s Senate seat. But Cellini did try to extort a Hollywood producer to give Blagojevich a $1.5 million campaign donation.
Kirsch also defended—unsuccessfully—Kevin Trudeau, an infomercial king who hawked weight-loss books and “natural” cures. Prosecutors described him as an “uncontrollable huckster who has defrauded the unsuspecting for 30 years.”
Quite the corruption fighter there, Kirsch.
Kirsch isn’t the first Trump judicial appointee who is fine with destroying the Senate’s norms to get a job.
First, there was Justice Neil Gorsuch, who was just fine taking a Supreme Court seat stolen from Obama when McConnell refused to even give a hearing to Obama’s nominee, Merrick Garland.
Then there was Justice Brett Kavanaugh, accused of multiple sexual assaults. Kavanaugh was fine with an incomplete FBI investigation and yelled and cried his way through his confirmation hearings rather than stepping down.
Finally, Amy Coney Barrett. Barrett allowed herself to be shepherded through a rushed confirmation, joining the Supreme Court less than two weeks before the election. McConnell justified the Garland blockade by saying the next president should choose Justice Antonin Scalia’s replacement as it was too close—eight months away—to the next election, but that justification went out the window. Barrett happily took the seat.
And now, Kirsch. He’s taking a seat that is only vacant because of Barrett’s unprecedented ascension to the highest court. He’s taking a seat that was only vacant for Barrett because the GOP wouldn’t give a Black woman a hearing. He’s taking a seat that shouldn’t even be filled during the lame-duck session. And, since he’s going along with it all, he clearly doesn’t care.