Finley: Partisan horse-trading delays Trump's 1st black female judge appointment

Nolan Finley
The Detroit News

Intrigue is building around two open federal court seats in Michigan that have sat vacant for two years while Republicans and Democrats play chess.

As executive appointees, the seats — one in the Eastern District court and one in the Western District — should both go to Republicans selected by President Donald Trump. But since Michigan has two Democratic U.S. senators, the process isn't that clean.

Under Senate rules, a senator from the state where the district court vacancy exists can "blue slip" a nominee for no reason, blocking the appointment.

Stephanie Dawkins Davis

So getting a nominee confirmed requires some dealing. In this case, Republicans thought they had a bargain with Sens. Debbie Stabenow and Gary Peters to name Stephanie Davis, a well respected magistrate judge, to the Eastern District seat of retired Judge Gerald Rosen in exchange for a Republican judge in the Western District. 

Trump agreed and made Davis his first African American woman judicial nominee.

It should have been a moment to celebrate, especially by Democrats, who have criticized the president for naming too few women and minorities to the bench.

But Davis has not received a Senate confirmation vote, and Republicans are blaming Stabenow and Peters for backing out of their end of the bargain.

The initial GOP Western District nominee, Michael Bogren, got a hearing, but Republicans derailed him because he once represented the city of Lansing in a case against an apple orchard owner who wouldn't rent out his barn for gay weddings.

Three more names were offered — Michigan appeals court judges Brock Swartzel and Michael Gadola and Western District magistrate judPhillip Green.

Gadola has family issues. Green is considered too old for a lifetime appointment. So Swartzel, who everyone agrees is highly qualified, became the consensus pick. 

Then Michigan Supreme Court Justice Brian Zahra jumped in with a scheme that piqued Democratic interest and delayed both appointments.

Two sources familiar with the horse-trading say Zahra, a Republican appointee, offered to resign from the state court if Peters and Stabenow would withhold an objection to his nomination to the Western District federal bench, should Trump name him.

Justice Brian K. Zahra

That would give new Democratic Gov. Gretchen Whitmer an appointment to the Supreme Court, tipping the balance of that bench to 4-3 in favor of Democratic-nominated justices. 

It's a neat package deal, especially for Zahra, who would get to draw his state pension and a federal salary, except that state Republicans want no part of it. First, they want to keep their edge on the state court. And they want the Western District seat to go to a westerner. Zahra is from Northville Township. They're lobbying the White House to stick with Swartzel.

Peters, in particular, faces a tough choice. He's being challenged by John James, an African-American Republican. Does he want to be the senator who holds up the nomination of the only black woman selected for the bench during the Trump years?

Republicans, too, are in a dicey spot. Come Jan. 1, the 2020 election year officially begins. Will Democrats follow the precedent Republicans set in 2016 and sit on judicial nominees until after the election?

Expect answers to those questions in the next several weeks.

Catch Nolan Finley on One Detroit at 7:30 p.m. Thursdays on Detroit Public Television.