Tom Carper (D-DE), left, and Chris Coons (D-DE), right. (Photos: Diego M. Radzinschi/ALM)
At least five Republican lawyers have expressed interest in two openings on the U.S. District Court for the District of Delaware, as the state’s two Democratic senators struggle to exert influence in the nominating process, sources confirmed this week.
The court’s role as a hub for IP litigation means President Donald Trump’s judicial selections will have impact far beyond the First State. And with a key U.S. Supreme Court decision looming, there is a growing sense of urgency to seat judges with solid IP credentials. Delaware is the nation’s second-busiest venue for patent litigation, and the case, TC Heartland v. Kraft Foods, could result in a flood of patent suits that would overwhelm the four-member bench.
The potential candidates—U.S. Magistrate Judge Sherry R. Fallon of the District of Delaware, Fish & Richardson partner Douglas E. McCann, Morgan, Lewis & Bockius partner Colm F. Connolly, Richards, Layton & Finger director Frederick L. Cottrell III and Saul Ewing partner Richard A. Forsten—responded to multiple inquiries from Delaware’s senior Sen. Tom Carper, before and after the 2016 presidential election, the sources said.
As many as five other prominent judges and attorneys are said to have submitted their names for positions left vacant by U.S. District Judges Sue L. Robinson and Gregory M. Sleet, who have both taken senior status. However, their interest could not immediately be confirmed.
None of the attorneys reportedly under consideration provided comment for this story.
The vacancies have created an unusual situation for Carper and Sen. Chris Coons, who sits on the influential U.S. Senate Judiciary Committee.
Typically, the White House consults with a state’s U.S. Senate delegation when assessing candidates for judicial openings. However, officials from the Trump administration have so far shown little interest in working with Delaware’s all-Democratic delegation, according to people familiar with the situation.
Still, both Carper and Coons have tried to gain leverage in the process to fill out a court known for its heavy caseload of intellectual property litigation and bankruptcy appeals.
Before the 2016 general election, Carper circulated emails seeking “expressions of interest” to “create a slate of qualified candidates” to replace Robinson, who formally announced this February that she would become a senior judge. Carper later extended the submission date after Trump pulled off his surprise victory over Hillary Clinton on Nov. 8, and he once again asked for applications when Sleet said in April that he too would assume senior status.
Coons, for his part, has privately discussed his intent to explore an independent, bipartisan commission, modeled off of Delaware’s system for vetting judicial nominees at the state-court level, sources said. As of Thursday, the panel had not yet taken shape, and Coons’ press office had not formally responded to multiple requests for comment.
Delaware Republicans, having just learned about the possibility of a commission, described the process Thursday as “very fluid.”
Laird Stabler, the Republican national committeeman for Delaware, said state GOP leaders were considering initiating their own process to recommend nominees for the court seats. Stabler confirmed that he had been in contact with the White House, but said Republicans were “still working through” how the process might work and who the “point person” would be.
Both Stabler and Michael Harrington, the newly installed chairman of the Delaware Republican Party, said they were open to serving on a bipartisan panel, but they cautioned that many details still need to be worked out.
“The process is very much in limbo,” Harrington said.
In Washington, White House counsel Don McGahn is aware of the openings as well as the district’s need for judges well-versed in IP and bankruptcy law, said Timothy Jay Houseal, co-counsel to the state Republican Party, who met May 5 to discuss the situation with McGahn and J.C. Boggs, an influential attorney with deep ties to Republican politics in Delaware.
“Whoever’s going to apply has to have either some experience in the area or make it clear that they’re ready for the caseload,” Houseal said in an interview.
Neither Boggs nor the White House press office responded Thursday to inquiries regarding the meeting.
Meanwhile, observers in Delaware are left largely in the dark about how the process in Washington plays out.
“With two Democratic senators in a Republican administration, I don’t really know how that goes,” Bart Dalton, a Wilmington lawyer and longtime player in state Democratic politics, said discussing the possibility of a bipartisan commission.
“I’m sure [the Trump administration will] give it some weight, but I don’t know how much weight they’ll give it. If they want to appoint someone, they’ll appoint them.”
Adding another layer of uncertainty is the question of whether the Republican majority in the Senate will honor the tradition of “blue slips,” which effectively allow home-state senators to block judicial candidates and exert leverage over the White House.
While Sen. Chuck Grassley, R-Iowa, chairman of the judiciary committee, has said he plans to keep the practice in place, others—like Sen. Tom Cotton, R-Arkansas—have told media outlets that his colleagues should consider dumping the longstanding tradition.
The timeline for naming nominees to the district court remains unknown, but the administration is expected to first proceed with filling vacancies on federal circuit courts and in U.S. attorneys’ offices. Even then, Trump’s team has to contend with more than 100 openings at the district court level, setting up a waiting game in Delaware.
“As I expressed to Senator Coons and Don McGahn, if the White House and Senators Coons and Carper wish to go forward with a bipartisan commission, I am available to serve,” Houseal said. “I am just waiting on instructions.”