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Expert: Federal Appeals Court Vacancy Could Tip Balance In Upcoming Cases

New Nominee Expected By End Of November


The legal battle over voter ID has highlighted a longstanding vacancy on the federal appeals court for Wisconsin, a vacancy that experts say could tip the balance in high-profile cases.

When the U.S. Supreme Court ultimately blocked Wisconsin’s voter ID law, it took some of the heat off the 7th Circuit Court of Appeals in Chicago. But prior to the Supreme Court getting involved, the 10 judges on the 7th Circuit had split 5-5 on whether to halt voter ID. They later split 5-5 on whether to overturn the law on its merits. That’s one vote short of the majority needed.

Voting to overturn the law were two judges appointed by Republicans and all three of the court’s Democratic appointees. The thing is, there should have been one more judge on that court, this one nominated by President Barack Obama.

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Judicial expert Russell Wheeler, of the Brookings Institution, said that could have changed the outcome of the case.

“It’s not unreasonable to suspect that fourth Democratic appointee might not have done the same thing,” Wheeler said.

He said the opening on the 7th Circuit is one of the longest standing vacancies in the country. Obama nominated Victoria Nourse to fill the vacancy in July 2010. She never received a U.S. Senate confirmation hearing. Nourse declined to comment for this story. She’s currently Vice President Joe Biden’s chief legal counsel.

Her nomination was blocked by Republican U.S. Sen. Ron Johnson, who said he objected because he didn’t like the process.

“The only reason I wasn’t agreeing to any nominees is I wasn’t given an opportunity to participate in any kind of fair manner with (U.S. Sen. Herb Kohl),” he said. “He just wouldn’t set up a commission where I had equal representation as he had.”

Since then, Johnson and Democratic U.S. Sen. Tammy Baldwin set up a new nominating commission made up of equal appointments from both lawmakers. Johnson said that process is working.

A spokesman for Baldwin agreed, saying they expected to receive the commission’s nomination for the 7th Circuit by the end of November.