Michael Harrington Sr., chair of the Delaware Republican Party, confirmed last week that the shortlist included Saul Ewing partner Richard A. Forsten, Richards, Layton & Finger director Frederick L. Cottrell III and Colm F. Connolly, a former U.S. attorney who is now a partner with Morgan, Lewis & Bockius.
All three of the hopefuls are Republicans.
Harrington has been working alongside Republican national committeeman Laird Stabler and committeewoman Ellen Barrosse to vet candidates for the seats being vacated by U.S. District Judges Sue L. Robinson and Gregory M. Sleet, in a process that has run parallel to a separate effort by Delaware’s two Democratic senators.
Harrington described Forsten, a real estate specialist for Saul Ewing and longtime party parliamentarian, as the Republicans’ “No. 1 choice” to join the District of Delaware’s four-member bench, known for its ability to handle a complex docket with a heavy intellectual property caseload.
“His resume is so overwhelmingly strong. He may not have as much experience in the area [of intellectual property], but he’s so astute and smart that in a very short period of time he’d be up to speed,” said Harrington, who has built a trust with Forsten after taking the reins of the state GOP in April.
“It’s just personal because he’s been so good to me as chairman,” he said.
Forsten did not return multiple calls seeking comment for this story. And neither Cottrell nor Connolly—the other GOP favorites—commented last week.
In recent weeks, U.S. District Chief Judge Leonard P. Stark has stressed, both publicly and privately, the need to bring the court back to full strength, especially in the wake of the U.S. Supreme Court’s landmark TC Heartland decision, which has already prompted an increase in patent filings in the First State.
According to numbers provided by the court, patent cases and cases involving abbreviated new drug applications for generics were up nearly 67 percent to 145 in the seven weeks after the high court’s May 22 ruling, compared to 87 in the seven weeks prior. Stark has enlisted a roster of visiting judges to handle Robinson’s docket as she prepares to leave the bench, while Sleet, who has indicated that he intends to take senior status, continues to manage a full caseload.
But the timing of the shortage has created a sense of urgency for both Republicans and Democrats, who are well aware of the strain it places on a court that is considered one of the main economic drivers for the state.
The nominating process, however, has taken an unusual shape, after President Donald Trump’s surprise victory over Hillary Clinton in November.
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, U.S. Sens. Chris Coons and Tom Carper have tried to gain leverage in the nominating process, launching their own “bipartisan judicial nominating committee” to vet potential candidates. Sources said the committee has interviewed about a dozen applicants from both sides of the aisle and is preparing to send its recommendations to the White House for consideration.
“Senator Carper and I have worked with the legal community in Delaware to evaluate candidates to fill the two Delaware district court vacancies,” Coons, who sits on the influential Senate Judiciary committee, said in a statement.
“Based on feedback from our bipartisan Judicial Nominating Committee, we have interviewed a number of highly qualified candidates who possess a wide range of skills and experience. We will be submitting our recommendations to the White House soon,” Coons said.
Carper’s press office did not respond to multiple requests for comment.
Though there has been some overlap in the names being considered by both nominating tracks, the two efforts have operated independently of one another, and Harrington said he had had no formal discussions with Coons or Carper.
Meanwhile, sources on both sides said that the White House has been largely silent about how it plans to proceed. The administration, however, is expected to first fill vacancies on federal circuit courts and in U.S. attorney’s offices, meaning that district court nominations may not be taken up until the fall.
It was also unclear whether Coons and Carper would consider using “blue slips,” which effectively allow home-state senators to exert leverage on the White House by blocking judicial candidates that they don’t like. Some members of the Republican-controlled Senate have floated the idea of discarding the tradition, while Sen. Chuck Grassley, R-Iowa, who chairs the Judiciary committee, has said he plans to keep the practice in place.
Harrington, who described himself as a “staunch Trump supporter,” said he was regularly following up with about a half-dozen sources he knows within the administration, but has yet to receive a direct answer on a timeline.
“I question that urgency, and I tried to push ours up because we are absolutely shorthanded in Delaware,” he said.
“I just wish there was more urgency.”