Nancy Freudenthal, U.S. District Judge for the District of Wyoming, announced in June she will be assuming senior status, a phase of semi-retirement that will likely bring the judge to the final chapter of a lengthy and distinguished career in Wyoming.
The move — which will take effect next June — opens up a seat on the three-person district court for the first time since President Barack Obama appointed Freudenthal and Chief Justice Scott Skavdahl more than a decade ago.
District court judges are appointed for life, subject to Senate confirmation and responsible for the oversight of all federal jurisdiction cases in Wyoming, overseeing everything from civil to criminal cases.
The President of the United States is responsible for choosing Freudenthal’s replacement. The current court consists of two judges appointed by Democrats and one Republican, an alignment that will persist once Freudenthal leaves the bench.
Despite its red status, Wyoming has not had a judge appointed by a Republican since President Ronald Reagan nominated current justice Alan Bond Johnson in 1985.
“[Turnover] is not rapid, I would say,” said Casper attorney Mike Sullivan, who served two terms as Wyoming’s governor from 1987-1995. “That comes from the fact that it’s a good prestigious position, and you don’t have to run for it. It’s a lifetime appointment. That has a tendency to encourage people to stay in place.”
Filling the seat
Though President Joe Biden has the final say on who will fill that seat, the state’s top elected Democrats, and the party itself, are expected to play a big role in who is considered.
During the Obama administration, that task fell to Gov. Dave Freudenthal, who recommended his wife.
This time around, Wyoming finds itself in a unique situation. Though House Minority Leader Cathy Connolly and Senate Minority Leader Chris Rothfuss would appear to be the highest-ranking Democrats in Wyoming, the drafting of the president’s shortlist, according to the Democratic National Committee, falls in the hands of the Wyoming Democratic Party.
“We’re glad to help President Biden and his administration in any way we can as they seek an individual to nominate for this important position,” Wyoming Democratic Party Chairman Joe Barbuto said in a statement to WyoFile.
In the four prior judicial nominations in the state since Clarence Brimmer ascended to the position in 1975 (when Democrat Ed Herschler was governor), Wyoming’s governor has shared the party of the president. However, current Gov. Mark Gordon is a Republican, and the Democratic Party holds little power in Wyoming, with no statewide elected officials and a small minority of the Legislature.
The party is still not completely certain on the role it will assume in selecting Biden’s nominee.
That could make things interesting, the party’s communications director Nina Hebert said. Though all of Wyoming’s recent judges have been from Wyoming, Biden is under no legal obligation to install a judge from the state they are designated to serve.
“When you have a governor that’s elected statewide, they just naturally have more sway [in the discussion],” said Hebert. “They have a bigger constituency.
“Even then, if a governor puts forward someone, puts forward a couple of names or puts forward even a single name, the president ultimately could still choose anyone that they wanted,” she said.
Based upon qualification
Historically, judicial nominations in Wyoming have not been controversial, Sullivan said. Many nominees gained Senate approval by unanimous or near-unanimous approval, according to a WyoFile review of confirmation votes.
While Sullivan’s one nominee to the bench during his term, William Downes, faced some flak over a minor political scandal at the time, Downes was ultimately selected by then-President Bill Clinton and confirmed by the Senate.
“I don’t think it should be a contentious position, as far as politics is concerned,” said Sullivan. “It should be based upon qualification.”
It is unclear whether that will change under the Biden administration. At a 50-50 split, the Senate remains deadlocked, and is operating in the wake of President Donald Trump, who appointed 234 conservative federal judges during his tenure.
While early indications have shown bipartisan support for Biden’s two confirmed nominees to the bench this year, the total votes have been narrower than seen in recent decades. In each instance, both Wyoming U.S. Sens. John Barrasso and Cynthia Lummis voted against seating the nominee.
Lummis and Barrasso did not respond to requests for comment for this story.