Supreme Court Uncertainty:Justice Cook May Finally Be Confirmed to Federal Bench

Those anxiously awaiting a high court ruling on the constitutionality of Ohio's ban on carrying concealed weapons may have more waiting, and worrying, to do.

After the successful election of two conservative justices in Election 2002 (thanks in no small part to the efforts of OFCC PAC volunteers), confidence in the possibility of a high court ruling concurrent with the lower courts grew. Some Ohio gun rights groups have gone so far as to call for the cessation of legislative efforts pending a court ruling.

But as OFCC PAC pointed out on November 14, the current 4 to 3 conservative majority is no sure thing in 2003. Justice Deborah Cook, an Akron Republican, is awaiting confirmation to the 6th Circuit U.S. Court of Appeals, and her confirmation would raise the opportunity for Gov. Bob Taft to nominate a replacement.

The Columbus Dispatch has published a report on the story. Click here to read the entire Columbus Dispatch story (subscription site - paid access only). An archived version of the story follows.

Nomination has justices wondering
Untimely departure may mean top court must rehear cases

Wednesday, December 18, 2002
Joe Hallett

The glacially slow process of confirming federal judges could cause problems next year for Justice Deborah Cook and the rest of the Ohio Supreme Court.

Chief Justice Thomas J. Moyer said yesterday that the Supreme Court might have to rehear any cases in which Cook participates but are undecided when she assumes a seat on the federal bench.

"The goal is not to have any cases pending without being fully voted when she leaves,'' Moyer said. "The uncertainty for us is, when does she begin to take herself off cases? It's important for us to have some idea when she will get a confirmation hearing.''

Although President Bush nominated Cook and former Ohio Solicitor Jeffrey Sutton to the 6th Circuit Court of Appeals in Cincinnati on May 9, 2001, neither has received a confirmation hearing before the Senate Judiciary Committee.

The Cook and Sutton nominations will expire at year's end, but Bush is expected to renominate them at the opening of a new congressional session on Jan. 7, according to Mike Dawson, spokesman for Ohio Sen. Mike DeWine, a Republican member of the judiciary committee.

"The committee is expected to hold several hearings in January, which we believe will include Justice Cook and Jeff Sutton,'' Dawson said. "They're both outstanding nominees, and we expect they'll move forward expeditiously now that the Republicans control the Senate.''

Still, uncertainty over the timing of Cook's confirmation could put the court in a quandary next year, Moyer said. The court generally renders final rulings in cases about two months after they are heard. Any cases Cook hears that are undecided when she leaves for the federal court might have to be reheard by the entire Supreme Court.

"There is no written rule, but the practice is we would give the lawyers in the case the option of re-arguing the case before the new justice (who replaces Cook),'' Moyer said.

Moyer said it will be difficult for Cook to decide when to begin recusing herself from cases until the Senate schedules a confirmation hearing date. Moyer would appoint state appeals court judges to replace Cook until Gov. Bob Taft names a permanent replacement.

Moyer said he has discussed the matter with DeWine.

"The senator's well aware of it and has made the committee aware of the problem,'' Dawson said. "Justice Cook and Jeff Sutton should have received their hearings a long time ago.''

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