The U.S. Senate Judiciary Committee on Thursday voted 14-7 to advance the nomination of Gordon P. Gallagher to be a federal trial judge for Colorado, which would make him the Biden administration’s fourth appointee in two years to the U.S. District Court if confirmed.
Gallagher, who is currently a part-time U.S. magistrate judge and defense attorney, would also become the first resident of the Western Slope appointed to Colorado’s seven-member court since 1989.
While Gallagher is now on track for confirmation by the full Senate, Colorado will experience a judicial vacancy in the meantime as U.S. District Court Judge William J. Martínez steps down as an active judge on Friday. Martínez, a Barack Obama appointee, gave a full year’s notice to the White House and Colorado’s senators that he would be taking a form of semi-retirement known as senior status, meaning he is eligible to handle a reduced caseload going forward.
U.S. Sens. Michael Bennet and John Hickenlooper submitted their preferred candidates to the White House last April, but the Biden administration did not nominate Gallagher until September. President Joe Biden further waited until Jan. 23 to re-nominate Gallagher after the new Congress took office. The series of delays all but ensured Gallagher would not be appointed in time for Martínez’s scheduled retirement.
Bennet and Hickenlooper's offices did not immediately answer questions about when the full Senate would take action on Gallagher's nomination. Hickenlooper, in a statement, said only that he will "look forward to getting him confirmed."
A graduate of the University of Denver's law school, Gallagher moved to Mesa County and originally tried more than 75 cases as a prosecutor before opening a criminal defense-oriented law firm in 2000. He estimated that he has litigated more than 275 trials in total, and would become one of few defense attorneys to join the federal bench.
Since 2012, he has also been a magistrate judge. While they tend to focus on preliminary or administrative matters in cases, magistrate judges can perform many of the same functions as life-tenured district judges, up to and including presiding over civil trials. As a magistrate judge, Gallagher also conducted approximately 80 naturalization ceremonies for new citizens in western Colorado.
Gallagher appeared for his confirmation hearing last year with a series of endorsements from the Western Slope. Multiple entities — including lawyers, community groups and one of the two federally-recognized tribal nations — wanted Gallagher to join the otherwise Denver-centric roster of judges currently on the trial court.
"The Tribe feels that there is little hope of providing justice and fairness to our Tribal Members," wrote Ute Mountain Ute Chairman Manuel Heart, "unless those hearing the cases and applying the cultural values that are common and important among our Members (are) familiar with those values. Magistrate Gallagher has demonstrated that he is sensitive to the needs of the Tribal Members."
Following his testimony last year to the Judiciary Committee, Gallagher submitted additional responses to senators’ written questions. U.S. Sen. Ted Cruz, R-Texas, pressed Gallagher on comments he made during one naturalization ceremony.
“Our nation is currently roiled by social turbulence,” Gallagher said on an unspecified date, “as groups whose voices have not been heard or who have had their opinions suppressed seek to stand shoulder to shoulder on equal footing with all other citizens in a quest to truly realize the promise of the Declaration of Independence — that we are all equal and all endowed by our creator with certain inalienable rights.”
Asked to clarify what he meant, Gallagher replied that he was “speaking broadly” about historically-suppressed groups and that “equal justice under the law continues to be the aspiration and the daily work of the justice system in the United States.”
U.S. Sen. Josh Hawley, R-Mo., asked multiple questions of Gallagher about child pornography, a subject that arose during the confirmation hearings of now-U.S. Supreme Court Justice Ketanji Brown Jackson, who sentenced some defendants for child pornography offenses when she was a trial judge.
Another current topic surfaced in questions from U.S. Sen. Thom Tillis, R-N.C., who inquired about “judge shopping.” Specifically, Republican officials in Texas have successfully challenged policies of the Biden administration by largely filing lawsuits in federal courts where only one to three judges — appointees of Republican presidents — hear cases.
In Gallagher’s observation, he wrote, “the Local Rules for the District of Colorado are structured in such a manner as to avoid individual judge shopping.”
Republican senators Tillis, Lindsey Graham of South Carolina and Chuck Grassley of Iowa joined the committee's Democratic members in voting for Gallagher.
Since taking office, Biden has nominated five federal judges to the trial and appellate courts based in Colorado. He will have the opportunity to install a sixth this year, as U.S. District Court Judge Raymond P. Moore, also an Obama appointee, is scheduled to take senior status in June.
Like Martínez, Moore gave one year’s notice of his impending retirement. Although Colorado’s senators have transmitted a list of finalists to the White House, Biden has not announced a nominee. The delay suggests that Moore’s seat will become vacant this summer unless the Senate acts promptly to confirm the nominee.
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