Tom Carper (D-DE), left, and Chris Coons (D-DE), right. (Photos: Diego M. Radzinschi/ALM)
President Donald Trump is expected in the coming weeks to announce his nominees for two openings on Delaware’s federal bench, as his administration vets three candidates forwarded by the state’s two Democratic senators.
Multiple sources confirmed last week that Morgan, Lewis & Bockius partner Colm F. Connolly, Morris, Nichols, Arsht & Tunnell partner Maryellen Noreika and Douglas E. McCann, a principal in Fish & Richardson’s Delaware office, were all on the shortlist to fill the vacancies left by U.S. District Judges Sue L. Robinson and Gregory M. Sleet.
The federal district court in Delaware—which has an outsized role in intellectual property, business law and bankruptcy—has four commissioned judges.
Connolly, a former U.S. attorney, and McCann, a high-profile intellectual property attorney, are both Republicans; Noreika, who also practices IP and patent litigation, is the only Democrat said to be under consideration. None of the attorneys provided comment for this story.
All three emerged as finalists after a weeks-long review process spearheaded by Sen. Tom Carper, Delaware’s senior senator, and Sen. Chris Coons, who sits on the powerful Judiciary Committee.
Carper and Coons, each of whom are Democrats, have wielded their influence with the White House in recent weeks, sources said, despite early doubts about how much weight their suggestions would carry with a new Republican administration with a predilection to disrupt standard processes. And they managed to hold off a group of Delaware Republicans who were advancing their own list of candidates.
Neither Carper nor Coons confirmed the attorneys’ names last week, but both senators said that the White House Counsel’s Office was actively mulling their selections.
“We jointly interviewed these candidates, selected our recommendations, and then sent those recommendations on to the White House,” Coons said in an emailed statement. “Our office has had discussions with White House Counsel Don McGahn, who invited our input, and his office indicated that our recommended candidates would be considered.”
Official background checks have already begun, and Trump is expected to announce his nominees sometime in September, the sources said.
The process to fill the two vacancies picked up steam earlier this summer, after the U.S. Supreme Court in May limited venue-shopping in patent litigation. According to the latest numbers from Chief Judge Leonard P. Stark, new patent filings in the District of Delaware have nearly doubled in the three months since the high court’s ruling in TC Heartland v. Kraft Foods Group, and even more cases are expected to be filed in the fall and winter.
Carper and Coons had assembled a bipartisan judicial nominating commission, modeled off of Delaware’s system for selecting candidates for state-level judgeships. According to sources, the panel reviewed between 10 and 20 candidates who had responded to Carper’s calls for applications.
Meanwhile, Mike Harrington Sr., chair of the Delaware Republican Party, worked with Laird Stabler and committeewoman Ellen Barrosse to establish a parallel process that last month produced Connolly, Saul Ewing partner Richard A. Forsten and Richards, Layton & Finger director Frederick L. Cottrell III as its preferred picks.
Sources said that Connolly was the only candidate from the Republican shortlist to have pursued both tracks, and Forsten and Cottrell were no longer considered to be in the running for the federal judgeships. Neither Harrington nor Stabler returned calls last week seeking comment for this story, though both men were said to be fuming at the latest developments.
Forsten and Cottrell did not respond to multiple requests for comment.
In a statement, Carper’s press office expressed confidence in the senators’ selections as they headed to the White House.
“The candidates put forth were chosen on their abilities and character, not on politics, and the senators are confident that their selections will be given proper consideration by the administration,” the statement read.
Typically, the White House consults with a state’s U.S. Senate delegation when assessing candidates for judicial openings, but it had been unclear initially whether the Trump administration would entertain recommendations from Carper and Coons.
The contingent of Delaware Republicans seized on the uncertainty, developing their own list of candidates and holding discussions with representatives from the White House. But the home-state senators maintained the ability to use their “blue slips” to effectively block judicial nominees they don’t like.
Thomas S. Neuberger, founder of The Neuberger Firm who has been following the processes, said the apparent arrangement between Carper and Coons and the White House meant that the threat of blue slips was likely off the table.
“It was the requirement of the White House, because of the blue slips, that you had to go through the process started by Carper,” he said.
Delaware is also looking to the possibility of eventually adding a fifth judgeship to its district court bench. The Judicial Conference of the United States has recommended that Congress create the new position, though there are no indications that any such legislation has picked up momentum at this point.
In the meantime, Stark has responded to the increased workload on his shorthanded court by enlisting a roster of visiting judges to handle Robinson’s workload after she retired earlier this summer. Sleet has announced his intention to take senior status, but continues to take new cases for the time being.