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How Schumer tried – and failed – to get a woman on Buffalo's bench

WASHINGTON – No one wants Buffalo to have its first female district court judge more than Charles E. Schumer, but he made a mistake that cost him what he wanted.

That's the conclusion some Buffalo lawyers and political types reached last week after Schumer, now the Democratic Senate minority leader and New York's senior senator, signed onto the White House's appointment of Buffalo attorney John L. Sinatra Jr. to fill a judicial vacancy in Buffalo.

Sinatra is a Republican, and most definitely not a woman.

But he's getting the job at the end of a series of unpredictable events that started with what now looks like a misstep on Schumer's part: his ill-fated recommendation nearly four years ago that former U.S. attorney Denise O'Donnell fill the judicial seat that Sinatra is getting now.

Here's how it all played out:

June 25, 2014: Schumer recommends O'Donnell. New York's senior senator seemed downright excited to recommend O'Donnell, long a leading figure among Democratic lawyers in Buffalo, for the vacancy to be created by Judge William M. Skretny's move to senior status.

"She's a moderate, thoughtful, caring person in her bones," Schumer said at the time. "I know her well. A lot of times when you interview the judge candidates, you're meeting them for the first time, but I've known Denise for 15 years, and I knew how good she would be."

Many Buffalo lawyers, both Democrats and Republicans, praised O'Donnell as an experienced lawyer with an excellent judicial temperament.

Privately, though, several lawyers interviewed by The News that day said they were shocked that Schumer had picked O'Donnell because she was 67 at the time – only two years younger than the veteran judge she would replace.

June 2014-October 2015: The White House goes silent. The president formally nominates federal judges, and they usually follow the recommendations sent to them by the state's senior senator. But then-President Barack Obama and his White House staff said nothing about Schumer's choice of O'Donnell. Ever.

Nearly a year later, on June 6, 2015, The News' Robert J. McCarthy asked Schumer what was going on with his recommendation.

"It takes the White House forever to vet people," he said.

But it didn't take the Obama White House nearly as long to vet Buffalo lawyer Lawrence J. Vilardo. Schumer recommended Vilardo for the slot of U.S. District Court Judge Richard J. Arcara on Aug. 13, 2014; Obama officially nominated Vilardo six months later.

So by July 2015, the Obama administration officials involved in the vetting process, who had long earned a reputation as a nameless bunch of Dudley Do-Rights, had been looking at O'Donnell's prospective nomination for twice as long as they had looked at Vilardo's.

The Obama White House wouldn't say why.

"We will decline to speculate about any nominations ahead of when the president makes them," Obama spokesman Keith Maley told The News at the time.

Oct. 26, 2015: O'Donnell bows out. O'Donnell and Schumer offered very different explanations as she withdrew her candidacy on the very same day that the Senate confirmed Vilardo.

“Our nation is at the threshold of transformative criminal justice reform and my work at the Bureau of Justice Assistance gives me the opportunity to lead and shape that movement,” O'Donnell said.

Schumer, meanwhile, blamed politics.

"It is extremely disappointing that such a great candidate for the federal bench was forced to remove her name due to the current partisan environment in the Senate," he said.

Buffalo lawyers said at the time, though, that O'Donnell's selection obviously ran into trouble at the White House, possibly because of her age, possibly for other reasons.

Some local lawyers speculated that Obama's people may have been worried about a judge with $300,000 sitting around in a campaign account, which is just what O'Donnell had left over from her 2006 run for state attorney general.

It's also possible that the Obama aides had concerns that O'Donnell's son, Jack O'Donnell, is a Buffalo political operative with longstanding ties to Steve Pigeon, the local politico who has been in legal trouble ever since state and federal authorities raided his home in May 2015.

November 2015-November 2016: Sweet gets slow-walked. Schumer quickly settled on Kathleen M. Sweet, a highly respected Buffalo lawyer, to replace O'Donnell as the nominee. This time, Obama quickly agreed, nominating her on March 15, 2016.

But then Republicans who control the Senate, hoping to take the White House that November and put forth their own judicial nominees, slow-walked her nomination and those of plenty of other Obama court selections. The Judiciary Committee didn't hold a hearing on Sweet's nomination until June 2016 and didn't vote on it until that September. Then Majority Leader Mitch McConnell, a Republican, never brought Sweet's nomination to the Senate floor.

That go-slow approach paid off for the Republicans when Donald Trump won the presidency in November 2016. That effectively killed Sweet's nomination and those of 58 other Obama court nominees.

May 2018: Sinatra's selection and its aftermath. This week Trump nominated Sinatra for the bench and Schumer agreed to it, calling Sinatra "a well-respected and legally qualified choice with broad bipartisan support."

While good-government types noted that Rep. Chris Collins, the Clarence Republican who pushed Sinatra's nomination, is the business partner of the nominee's brother, Democrats and Republicans alike praised Sinatra as a fine lawyer. Besides, Schumer said, the Trump White House refused to even consider renominating Sweet.

That's no surprise. According to the liberal American Constitution Society, out of Trump's 154 judicial nominees nationwide, only 10 were selected first by Obama. Then there's the fact that Collins was the first Republican House member to endorse Trump and has been an outspoken defender of the president's ever since – meaning Collins' word carries weight at the White House.

Yes, Schumer could have blocked Sinatra's nomination – but at the price of a bigger case backlog in the Buffalo courts. Federal records show that cases in the local federal courts already take twice as long to process as they do nationally, and Schumer surely did not want to make those waits worse.

For those reasons, most local lawyers and political types interviewed last week did not question Schumer's support of Sinatra – but some, who did not want to be identified by name, questioned the senator's support of O'Donnell. After all, if Schumer had just recommended the younger and less political Sweet four years ago, she might well be a federal judge by now.

"I don't know why Schumer stuck by O'Donnell so long," said a Buffalo Republican who was plugged into the selection process. "A lot of people were asking: 'What's he doing?' "

The answer is simple. Schumer has made it a priority to select women to the courts. He ecommended female federal judges in Rochester, Syracuse and Albany – all appointed by Obama and all serving on the bench today.

With O'Donnell, Schumer stuck with a female nominee he knew for a long time, one he liked and trusted. And he's still doing it.

Asked last week if he regretted suggesting O'Donnell for the court opening, Schumer said: "I thought she was well-qualified. I wanted a woman. And I thought she was great and now I'm sorry that she withdrew."

 

 

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