BY A.J. BELL
A source close to United States Senator Chuck Schumer says that he is receptive to Federal District Court Judge Diane Humetewa’s potential nomination to the Supreme Court. The White House has said that an extensive vetting process is underway for several prospective candidates. A Humetewa nomination could help the Democrats retake the Senate — and make Schumer the next Majority Leader.
Humetewa is a moderate Republican with centrist views. She was appointed United States Attorney for Arizona by President George W. Bush, and was recommended for nomination to the federal bench by Senator John McCain. President Barack Obama acted on the recommendation and she was confirmed by a 96-0 vote.
With those endorsements, it would be difficult for the Republican controlled Senate to obstruct the nomination.
Nominating a Republican judge would be seen as such an extraordinary olive branch towards bipartisanship that Senate Republicans would be forced to confirm her nomination or risk widespread electoral losses. Earlier this week, Vice President Joe Biden told reporters that the Administration’s nominee for the Court will be someone who has demonstrated support from Republicans in the past. Those sentiments were echoed hours later by Schumer.
Humetewa has been sitting on the federal bench for about two years, which has been long enough to establish a body of judgements that proves her moderate bonafides without the decades long paper trail that dooms so many prospective nominees.
A compelling narrative
Humetewa is a Professor of Practice at Arizona State University’s Sandra Day O’Connor College of Law. She has served as counsel to the US Senate Committee on Indian Affairs and to the Deputy Attorney General at the Department of Justice. She is a former Appellate Court Judge for the Hopi Nation, of which she is an enrolled member. She is the only Native American sitting on the federal bench and is recognized as a leading expert in federal Indian law.
Given the constructs of American property law, Indian law is distinctly federal. Tribes are disproportionately affected by Supreme Court decisions that have, at times, haphazardly reshaped jurisdictional relationships with overt racial bias. Hundreds of years of case law has evolved around the objective of subjugating the property rights of indigenous people.
The politics of the confirmation hearing
A Humetewa nomination would likely focus the Senate Judiciary Committee’s confirmation hearings on her views of federal Indian law, and with it hundreds of years of case law. But Humetewa’s judicial record is quite moderate, having ruled against one Arizona tribe seeking to block the construction of a federal highway.
Still, operatives say, it will be hard for Republicans on the Senate Judiciary Committee to engage in a conversation about tribal sovereignty without appearing to be ignorant of a deep and complicated history of case law that spans hundreds of years. On national television, the risks of exposing personal biases could jeopardize Senate seats.
The Judiciary Committee is comprised of 11 Republicans and 9 Democrats. To get a vote out of the Committee and onto the full floor, presuming all of the Democrats line up behind Obama’s nominee, two Republican votes are needed. Chairman Chuck Grassley (R-Iowa), and Senators David Vitter (R-Louisanna) and Mike Lee (R-Utah) are all up for reelection this year. Jeff Flake (R-Arizona) already endorsed Humetewa for the federal bench prior to her Obama appointment as District Court Judge.
Republicans who don’t sit on the Judiciary Committee will also face political risks for opposing a Humetewa confirmation, particularly in light of tribes’ newfound political influence — particularly those that have major gaming enterprises or those with major resource extraction industries.
Senators John Thune (R-South Dakota), John Hoeven (R-North Dakota), Lisa Murkowski (R-Alaska), Ron Johnson (R-Wisconsin), Mike Crapo (R-Idaho), and James Lankford (R-Oklahoma), all face reelection this year in States where tribes have been increasingly willing to exert political influence.
Republican Senators who are running for reelection in States with strong Democratic Party enrollment majorities will be under particular pressure, given the high turnout that is expected of Presidential election cycles. Observers say that Patrick Toomey (R-Pennsylvannia), Mark Kirk (R-Illinois), and swing-staters Kelley Ayotte (R-New Hampshire), and Rob Portman (R-Ohio) are likely backers of a moderate Republican like Humetewa.