In October 2014, we released “The Judges of the United States Court of Appeals for the Seventh Circuit,” a report detailing the impact of the nation’s oldest circuit court vacancy and examining the record of the judges of the Seventh Circuit. At that time, there was no nominee for Judge Terence Evans’ seat in Wisconsin, which had been vacant for almost five years. The report showed a divided court on which a longstanding vacancy directly influenced the outcome of important constitutional issues. The report also detailed the efforts of Republican Senator Ron Johnson to delay filling the vacancy. Read more
As more and more Americans speak out about the dismal pace of the Senate’s judicial confirmations this year and the growing list of judicial vacancies, Judiciary Committee Chairman Chuck Grassley has responded to the criticism by constantly looking in the rearview mirror.
His latest came on Wednesday in an “update to my colleagues and the American people regarding the progress of judicial nominations.” The senator touts the fact that the Senate has already confirmed 317 of President Obama’s nominees, compared to 294 of President George W. Bush’s nominees confirmed at this same point in his presidency. Grassley also claims that the Senate Judiciary Committee is moving at the same pace this year as it did during the last part of Bush’s presidency. All in all, according to Senator Grassley, Senate Republicans are making “good progress” on President Obama’s nominees.
But Grassley’s rearview mirror has some blind spots. For starters, comparing total confirmed is only useful if each president faced the same number of vacancies. But as of today, President Obama has been tasked with appointing judges to 381 judicial vacancies, while President Bush had 377 judicial vacancies to deal with—during his entire presidency. That’s right, Obama already has had more judicial vacancies to fill than Bush ever faced, and Obama still has over a year left in office. Read more
Republicans have engineered another politically motivated delay in New Jersey. But this time it doesn’t involve how long it takes to get across the George Washington Bridge. This time, it’s all about how long it takes for judges to get onto the federal bench.
Take the case of Julien Neals. His seemingly endless wait for a committee vote has finally ended. The Senate Judiciary Committee unanimously approved his nomination this morning, along with that of four others— Rebecca Ebinger for the Southern District of Iowa, Leonard Strand for the Northern District of Iowa, Gary Brown for the Eastern District of New York, and Mark Young for the Central District of California. Read more
To shed light on this process, AFJ recently released the Blue Slip Report, the only online resource detailing the blue slip status for all pending judicial nominees.
At its best, the blue slip process ensures that senators have a say in who serves as federal judges in their home states. But the process can also be exploited and turned into a means of obstructing nominees—even those they’ve recommended to the president—and prevent them from ever receiving a hearing. Read more
We already know that Texas is the epicenter of a growing judicial vacancy crisis. The state has nine judicial vacancies (the most of any state in the country), seven of which are official judicial emergencies. We also know that vacancies mean long delays for the people and businesses who need the courts to protect their rights and resolve disputes—delays that often mean justice is denied entirely. Now a new study sheds light on another real-world impact of judicial vacancies—the economic harms they cause not just for individual litigants, but for entire communities.
The Washington Examiner writes this morning that President Obama may “surpass President George W. Bush’s score when it comes to judicial appointments,” and notes that Obama “seems likely to break Bush’s mark with help from a Republican-controlled Senate.” The sole basis of these claims is that Obama is 11 judicial appointments short of matching Bush’s total for his entire eight years. Setting aside that this historically awful Republican majority is barely on pace to confirm 11 more judges this entire Congress, the article demonstrates the absurdity and uselessness of fixating on confirmation totals in isolation.
Over the weekend, Eastern District of Texas Judge Michael Schneider announced that he’ll leave active duty and take “senior status” in January 2016. By providing over four-months’ notice, Judge Schneider gave the Texas senators charged with finding his replacement an opportunity to do what they have never done before: fill a judicial vacancy before the judge actually steps down and further weakens an already strained justice system. Avoiding the disruption of a vacancy is, after all, the whole point of giving advance notice. In other states, senators often begin working on a vacancy as soon as it’s announced. But not Senators John Cornyn and Ted Cruz. Instead, they have watched vacancies pile up—ignoring, in some cases, more than a year of notice. They have refused to take action until a judge has left the bench, or even long afterward.
Nine Texas federal district judges have stepped down while Cornyn and Cruz have been in office. In each case the judge left before the senators even asked candidates to submit applications. That slow-motion process is contrary not just to common practice nationwide, but to the precedent John Cornyn himself established when fellow-Republican George W. Bush was in office. When Cornyn and Republican Kay Bailey Hutchison served in the Senate under President Bush, five Texas judges gave advance notice of their departure, and for all five the senators recommended replacements well before the vacancies became current. For three of the seats, President Bush was able to make a nomination before the outgoing judge left the bench.
With Cornyn and Cruz dragging their feet under President Obama, Texas has become the epicenter of a growing judicial vacancy crisis. Including two seats on the Fifth Circuit, Texas has nine current judicial vacancies (the most of any state in the country), three of which have been vacant for over two years. Seven of the vacancies are officially designated “judicial emergencies” because of crushing caseloads and desperately needed judges. The extraordinary number of vacancies requires Texas’s remaining active judges to travel—sometimes for hours—to help neighboring courts manage their dockets.
Texas has been in dire need of more judges for years, but Judge Schneider’s vacancy in particular should provide extra incentive for Cornyn and Cruz to avoid delay and take immediate action. The Eastern District of Texas is the second busiest court in the country. It’s so overburdened that the Judicial Conference of the United States called for adding two new judgeships, in addition to filling existing vacancies.
What’s more, the courthouse in Tyler, Texas, where Judge Schneider presides, is already down one judge due to the recent retirement of Judge Leonard Davis. Judge Davis provided almost a year’s notice before retiring in May 2015, and explained in his retirement letter that, without a swift replacement, it would be difficult for the remaining judges to “continue to fulfill their constitutional responsibilities to the citizens of East Texas.” The Tyler Area Chamber of Commerce and Tyler Economic Development Council also urged Cornyn and Cruz to ensure the “swift appointment of [Judge Davis’s replacement] so as to assure the unbroken federal judicial presence in Tyler.” Yet despite these pleas from those most affected by vacancies—the people and businesses who rely on courts to provide justice, and the judges who must work longer and harder to meet growing caseloads—Cornyn and Cruz continue to play politics with the courts, and have not yet started the process to find Judge Davis’s replacement.
Senator Cornyn says he “work[s] . . . to fill openings as they arise,” but he and Senator Cruz can do much better by looking for replacements before they are needed. Judge Schneider’s vacancy could be yet another blow to a court system that for years has been pummeled by a barrage of new vacancies, or it could signify a turning point for Texas courts. Senators Cornyn and Cruz have a choice: let the Texas vacancy crisis grow even worse, or start looking for the judges Texans desperately need.
The Senate confirmed its first appeals court judge of the year last night, unanimously approving Kara Farnandez Stoll for a seat on the U.S. Court of Appeals for the Federal Circuit. Stoll waited more than two months on the Senate floor for a vote, enduring needless delay that has become the norm under Republican leadership. More than six months into 2015, the Senate has confirmed only five judges, and four of them were district court nominees selected and recommended by their own Republican senators. By comparison, during the penultimate year of President George W. Bush’s administration in 2007, Senate Democrats had confirmed 25 judges by July 9.
In floor speeches before the vote yesterday, Senate Democrats hammered Republicans for the confirmation slowdown. Minority Leader Harry Reid said that confirming only one circuit court nominee so far is an “embarrassment,” and accused Senate Republicans of “failing in their basic constitutional responsibility to provide advise and consent” on judges. “The Republican Leader [Mitch McConnell] and his party are on pace to confirm the fewest judicial nominations in half a century,” Reid noted. It’s actually even worse: the Senate hasn’t confirmed 10 or fewer judges since 1953.
In response, Judiciary Committee Chairman Chuck Grassley lamely defended the pace of confirmations in written remarks, asserting that “there shouldn’t be any complaining about following the same standard we did in 2007.” Grassley supported his view with three well-worn talking points that do not survive even the most cursory review. Yet they are worth refuting here, if only because they are commonly given to reporters covering Senate confirmations. It’s time to set the record straight once and for all.
Let’s take each point in turn.
- Grassley’s first argument is based on a meaningless comparison of raw confirmation totals. He pointed out that President Obama has had 312 judges confirmed, while at this same point in 2007 President Bush had only 279. “That’s 33 more judicial nominees confirmed” for Obama, Grassley said, “[s]o, this president and his judicial nominees are being treated as fairly, if not more fairly, than the last president.” The problem is that Obama’s higher confirmations are explained by the higher number of judicial vacancies he has had to fill, not by preferential treatment in the Senate. At this point in their respective presidencies, Obama has faced 47 more vacancies than did Bush, which means that, with only 33 more confirmed, Obama’s confirmations are actually falling behind.
- Next, Grassley defended his own work as chairman, saying “[w]e’re . . . moving judicial nominees in [the Judiciary] Committee at about the same pace as we did at this point in President Bush’s presidency.” On this point, Grassley’s sleight of hand is to include both executive and judicial nominees in his numbers. But when the focus is on judges, a discrepancy appears: only 13 judicial nominees have had hearings so far this year, while at this point in 2007 Democratic Chairman Patrick Leahy had convened hearings for 17 nominees. And lest anyone think the committee has been overly burdened with executive nominees, recall that Grassley has gone weeks without a confirmation hearing, and in one instance called a hearing with only two judicial nominees on the witness list.
- Third, Grassley invoked his own fuzzy math argument, claiming credit for the 11 district court judges that Senate Democrats voted out of committee and confirmed during the lame duck session at the end of last year. He claims that, per Senate tradition, these nominees should have been held for confirmation votes under the new Senate majority. He again pointed to confirmations in 2007: “In 2006, the Senate returned 13 judicial nominees to the President. Those nominees were then re-nominated in 2007, and confirmed in the new Congress. Had Democrats followed standard Senate practice, we would’ve voted on those 11 nominees at the beginning of this year[.]”
But what Grassley refers to as “standard Senate practice” was in fact nothing more than the obstruction of a single Republican senator. At the end of 2006, Republican Senator Sam Brownback blocked a vote on district court nominee Janet Neff because she once attended, as a guest of longtime neighbors, a same-sex civil commitment ceremony. As The New York Times reported at the time, Brownback’s objection, not “Senate practice,” was the only reason nominees were returned to the president: “Judge Neff’s nomination was included in a package of more than a dozen nominees whose confirmation had been agreed upon by both Democrats and Republicans. Mr. Brownback’s objections held up the whole roster of nominees.”
And that’s it. These are the best reasons Republicans can muster to explain why, under their watch, judicial confirmations are headed toward historical lows. It’s obvious that Senate Republicans are intentionally keeping our federal courts understaffed, delaying justice for Americans all across the country, to preserve as many vacancies as possible for what they hope is a future Republican president. Their talking points to the contrary are mere pretext to disguise a purely partisan agenda, and they should be called on it.
We recently chronicled the glacial pace of judicial confirmations under the leadership of Senate Judiciary Chairman Chuck Grassley. Yet, despite the slow start, Senator Grassley has already shifted his sights—to shutting down judicial confirmations altogether.
In comments today at the National Press Club, Senator Grassley said of judicial nominations: “Come July of 2016, probably they’ll be cut off and not approving any . . . It’s just kind of tradition.”
But this “tradition” is one of Grassley’s own making. Presidents regularly have district and circuit court nominees confirmed after July 1 of their final year in office. President Clinton had nine in 2000. President George W. Bush had 14 in 2008. And in each case the president faced a Senate controlled by the opposition party.
More importantly, President Clinton’s and Bush’s nominees were treated fairly throughout their final two years in office, when they had 73 and 68 judicial nominees confirmed, respectively. In the first four months of his final two years, President Obama has had two.
Senator Grassley is making it clear he’s committed to obstructing the confirmation process from the beginning to end of this term—and now he wants the end to come sooner than expected.
A little over a week into the new Congress, and Senate Judiciary Chairman Chuck Grassley, R-Iowa, has already begun laying the groundwork to limit the number of President Obama’s judicial nominees the Senate will confirm.
As we detailed earlier this week, presidents have historically continued filling judicial vacancies even with an opposition Senate in their final two years of office. On average, 20 percent of a president’s total judicial confirmations—which would be 76 judges for President Obama—are confirmed in the final two years of office.
The Senate has not yet confirmed any nominees this year. Nonetheless, in a recent article, a Grassley spokeswoman said that the Senator has already started tallying his confirmations for the 114th Congress, presumably to limit the number of additional nominees the Senate will confirm.
Under Grassley’s version of new math, the current Senate has already confirmed 11 judges. Grassley counts these judges even though they were reported out of committee and confirmed not in the current Senate, the one in which Republicans are in the majority, but by the last Senate during its “lame duck” session.
Of course, these confirmations were not the accomplishments of Senator Grassley or Senate Republicans. In fact, Senator
Grassley delayed the confirmations for which he now seeks credit and opposed confirming any nominees reported out of committee during the lame duck session. Senate Republicans even blocked their own states’ nominees and forced Democratic leadership to file cloture motions on uncontroversial judges, all while many argued that confirmations should be shut down entirely during the lame duck.
Manipulating confirmation numbers and claiming credit where it isn’t due does nothing to fill the 44 current judicial vacancies and many more (25 already announced) that will open in 2015. It does nothing for people living in Pennsylvania and Texas, where numerous, longstanding vacancies and rising caseloads have left individuals waiting in line for justice.
Iowa’s largest newspaper has called on Senator Grassley to end obstructionist policies and confirm qualified judges to the bench, and Grassley himself has promised to hold hearings soon on pending nominees. We hope he chooses to do so.
With the Senate changing hands in January, some in the new Senate majority have indicated that they will continue to confirm President Obama’s judicial nominees, while others have gone so far as to call for a shutdown of confirmations during the final weeks of this session.
Alliance for Justice’s new Benched! series will keep an eye on what senators and other prominent officials say and do (or don’t do, as the case may be) on judicial nominations during President Obama’s remaining two years in office, in order to hold the Senate accountable for its constitutional obligation to advise and consent regarding the president’s nominees to the federal bench.
In a recent congressional hearing, soon-to-be Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, said:
[T]he Senate has been extremely busy and accommodating in getting this President’s [judicial] nominees through.
Busy, yes. Accommodating, no. Senate Republicans have obstructed every aspect of the nomination process:
- They “hold over” nominees in committee: Instead of allowing committee votes at the first opportunity, Republicans have “held over” nearly all of President Obama’s judicial nominees, requiring an extra week or more before the nominee can go to the Senate floor.
- They filibuster even noncontroversial nominees: To date, Senate Majority Leader Harry Reid, D-Nev., has had to file cloture on 115 of President Obama’s judicial nominations (including every nominee since November 2013)—compared to 22 total cloture filings on President George W. Bush’s judicial nominations.
- They require time-consuming roll-call votes: Republicans in 2014 have refused to follow the tradition of confirming judges—particularly noncontroversial district court judges—via unanimous consent or agreed-upon votes, forcing the Senate to go through the tedious roll call vote process, first to invoke cloture and then to confirm.
- They force the Senate to wait out the full allotment of post-cloture debate time: Senate Republicans have wasted well over 400 hours of floor time that could have been spent enacting legislation to help the American people.
If all this is “accommodating,” we wonder what Senator Grassley thinks obstruction looks like.
For the remainder of the 113th Congress, Senate Republicans should actually be “accommodating” and agree to confirm at least the 15 district court nominees now pending on the floor.
AFJ’s new Judicial Selection Dashboard brings the statistics to life
Alliance for Justice long has been the definitive source of information concerning judicial vacancies. We track the status of every vacancy for a lifetime appointment to a federal judgeship. Now, we’re also the leader in presenting the data in an easy to access, visually-striking form.
Find out at a glance where the vacancies are most severe. Where have they gone on the longest? Where have they reached the status of Judicial Emergencies? How many vacancies are there in your state?
Developed by Data Revelations the dashboard lets you zoom in – literally – on any state. Filter by the party affiliation of a state’s senators, by circuit or district court vacancies, by when the vacancy was announced or when the judgeship became vacant, by whether a nominee is pending in committee or on the Senate floor – or by almost any other variable you can think of.
We’ve preserved all the detailed information you’re used to about judicial vacancies. Now it’s in a format that allows you to customize it to your needs.
But pretty graphics are not an end in themselves – they’re a way to drive home the point we’ve been making for years: There should be a judge for every vacancy on the federal bench. And, as AFJ President Nan Aron noted in her recent letter in The New York Times we need those vacancies filled now!
We could say more, but the Dashboard “speaks” for itself!
Since Election Day, numerous stories have said that Democrats and progressive groups want ju dges confirmed in the upcoming “lame duck” session because it will be harder to get confirmations once the Republicans take control of the Senate in January. But the most important reasons for confirming judges during the lame duck would apply no matter who was slated to control the Senate next year.
Here are four reasons why the Senate should confirm at least 24 district court nominees—16 of whom are pending on the floor and eight of whom are ready to be reported out of the Judiciary Committee—before the end of the year:
- It’s the Senate’s job. As AFJ President Nan Aron said with respect to Attorney General nominee Loretta Lynch, “The Constitution compels the Senate to live up to its responsibility to advise and consent at all times, including so-called lame duck sessions.” That includes judicial nominees. We were fighting for swift confirmations before the election and there’s no reason to stop now.
- The fair administration of justice demands it. When judgeships sit vacant, it’s not the Alliance for Justice, the President, or the Senate that suffers—it’s the American people. Judicial vacancies mean small businesses struggle with uncertainty, injured individuals drown under the weight of medical bills, and victims of discrimination must wait for justice. These injustices are particularly acute in courts that have vacancies designated as “judicial emergencies” because they simply don’t have enough judges to handle their caseloads. Paul Gordon at People for the American Way has done an excellent job documenting just how great the need is to fill the vacancies for which there are pending nominees.
- Delaying confirmations wastes time and taxpayer money. When nominees are not confirmed before the end of a Congress, they must be re-nominated in the new Congress. That’s not just a formality. It means reams of duplicative paperwork for Justice Department and White House employees. It means the Judiciary Committee has to waste time with duplicative confirmation hearings and committee votes for nominees who have already been vetted and approved. And it means that precious Senate floor time is spent doing last year’s work. Because Senate Republican obstruction led to a whole host of nominees being returned to the President at the end of last year, the Senate spent the first five months of 2014 voting on judicial nominees from 2013. With so much that needs to be done for the American people, it makes no sense to spend next year doing this year’s work.
- The expiration of agreed-upon Senate rules changes could lead to even more time wasting. At the beginning of the 113th Congress, an agreement was reached to reduce post-cloture “debate” time for district court nominees from 30 hours to 2 hours equally divided. In practice, Democrats have yielded back their one hour of post-cloture time, meaning district court nominations have taken just one hour each after cloture is invoked. That deal goes away at the end of this Congress. So if Senate Republicans continue to insist on cloture votes for every single nominee (as they have for the past year), the Senate could spend 24 hours to confirm these 24 nominees now, or 720 hours to do the same work next year. And keep in mind that the Senate can’t do anything else during post-cloture time unless all 100 senators agree.
These are the issues we’ve been talking about since well before the election, and they’re the reasons we’re continuing to fight for confirmations now.
By Kyle C. Barry
AFJ Legislative Counsel
Last week, the Heritage Foundation’s Elizabeth Slattery attacked a Washington Post article about the recent uptick in confirmations for President Obama’s judicial nominees, using it to argue that the Senate has treated Obama’s nominees more favorably than those of President George W. Bush. Slattery’s piece presents a one-sided and ultimately flawed analysis that omits key data points, and fails to acknowledge how Senate Republicans continue to obstruct the confirmation process and block the president from filling a growing list of judicial vacancies.
Following John Owens’ confirmation to the Ninth Circuit, the Post observed that 19 of Obama’s judicial nominees have been confirmed in 2014 so far (the best first-quarter of any year during his administration), and that Obama has now appointed 235 judges to the federal bench. The Post compared this to the 324 federal judges that Bush appointed during his entire two terms, and reasoned that “if the Senate keeps up close to its current pace, Obama might, after six years, get relatively close to Bush’s eight-year total.” In other words, the Washington Post concluded that things are looking up for Obama’s judicial nominees, even compared to President Bush.
But the Heritage Foundation claims the Post did not go far enough in explaining how conditions have improved for judicial nominees in the Senate. In a blog post titled “Washington Post Gets the Numbers Wrong on Judicial Nominees,” Slattery zeroes in on the total number of confirmations in the first 15 months of each president’s second term—62 for Obama, 28 for Bush—and uses this data to conclude that “Obama’s confirmation rate has actually been outpacing Bush’s 2-to-1.” “At this rate,” Slattery argues, “Obama is set to steamroll Bush’s total number of confirmations.”
The problem here is that simply comparing confirmation totals from an isolated 15 month period is hardly an adequate proxy for each president’s ability to fill vacancies and move nominees through the confirmation process. As an initial matter, the overall number of confirmations for Obama and Bush at this point in their presidencies is about the same—Obama has now appointed 235 federal judges, while Bush had appointed 233. Taking the full picture into account, Slattery’s “2-to-1” ratio is plainly arbitrary and incomplete.
Next, in any event, comparing the total number of confirmations is meaningless without also considering the number of vacancies each president could possibly fill, and the number of nominees the Senate could possibly confirm. Here, Obama has had 35 more total vacancies thus far in his presidency than Bush, and he’s also made 38 more nominations. That alone suggests that, all else being equal or more favorable to President Obama, he should have a much higher number of confirmations than President Bush. Moreover, Obama’s judicial confirmations have not kept pace with new vacancies. During his administration, the number of vacancies has increased by 30—from 55 to the current total of 85. Conversely, the confirmations of President Bush’s judicial nominees reduced the total number of vacancies by 27—from 80 when he took office, to 53 on April 1, 2006.
Given this discrepancy in the number of vacancies and nominations, both the rate of confirmations—the percentage of nominees that the Senate has confirmed—and the rate of judicial appointments—the percentage of vacancies the president has been able to fill—provide a far more useful comparison than the raw total of confirmations. And it’s here that Obama clearly lags behind Bush: Only 79% of Obama’s nominees have been confirmed compared to 89% at this same point for Bush; likewise, Obama has filled only 73% of the total judicial vacancies up to this point in his presidency, while Bush had filled about 82%. By these measures, which account for essential variables that the Heritage Foundation ignored, Bush fared significantly better in getting his nominees confirmed and staffing the federal judiciary.
Finally, Slattery’s analysis ignores the ways in which Republican obstruction contributes to Obama’s growing number of vacancies and relatively low confirmation rate. Currently, there’s a backlog of 31 judicial nominees waiting on the Senate floor for a confirmation vote, including six nominees to the vitally important circuit courts of appeals, which, because the Supreme Court hears so few cases, often have the final say on questions of federal law. All of these nominees could be confirmed quickly through unanimous consent or agreed-upon votes, the traditional means of confirming judges. But Senate Republicans have slowed the process by requiring a cloture vote on even the most noncontroversial nominees. For example, a trio of district court judges recently confirmed to the Eastern District of Michigan all failed to earn the 60 votes that Senate rules used to require to invoke cloture. They were then confirmed 98-0, 98-0, and 97-0, respectively, revealing that the demand for cloture votes was merely a charade intended only to waste time. Similarly, Tenth Circuit nominee Carolyn McHugh suffered through a meaningless 62-34 cloture vote despite having the home state support of Utah’s two Republican Senators. She was confirmed 98-0.
Vacancies also remain high because Republican Senators delay in recommending nominees for seats in their home states. As a result, 31 of the 37 current vacancies without a nominee are in a state with at least one Republican Senator, and 8 of those 31 are critical “judicial emergencies.” Regardless of how many confirmations the Senate records, Americans in these states will be denied justice as they wait for overburdened and understaffed courts to catch up with rising caseloads.
That 19 judges have been confirmed this year (and that Obama has now confirmed more judges at this point in his presidency than Bush) reflects real progress for the president’s judicial nominees. But focusing on that statistic alone masks the substantial work left to be done. In particular, as nominees wait in line for a vote and Republicans continue to waste valuable floor time, our federal justice system suffers. This isn’t the time for the Senate to accept delays and obstruction as the new normal of the confirmation process, or to celebrate what’s been accomplished so far. This is the time to make the health of our federal courts a priority and take action.
The Senate ushered in the rules reform era by confirming Patricia Millett and Nina Pillard, two nominees to the D.C. Circuit Court of Appeals. The Senate is expected to confirm President Obama’s other D.C. Circuit nominee, Judge Robert Wilkins, before the December recess. This is great news for our federal judiciary and the administration of justice, but Republicans and conservative commentators are still trying—cynically and disingenuously—to make you believe otherwise.
Once the Senate changed its rules, the D.C. Circuit nominees were all but assured confirmation, and their extremist opponents were left with little recourse. So they’re getting desperate. One tactic has been feigned concern over the “judicial emergencies” that exist in various federal courts around the country. Courts have “judicial emergencies” when, because of vacancies, there simply aren’t enough judges to handle the caseload. There are 38 judicial emergencies as of this writing, 17 of which do not have a pending nominee. So why, the Republicans ask, are the Democrats “wasting” time on D.C. Circuit vacancies when there is more of a need elsewhere? Just yesterday, Minority Leader Mitch McConnell, R-Ky., took to the Senate floor to deride Majority Leader Harry Reid, D-Nev., for making the “choice to spend the week on nominations that are not emergencies.”
The right-wing Judicial Crisis Network (formerly known, when it was created during the Bush Administration, as the Judicial Confirmation Network), has been a principal peddler of this view. Its Chief Counsel Carrie Severino has argued further that blame for these emergencies cannot be levied on Republican obstruction, because any use of the filibuster has “had nothing to do with perpetuating judicial emergencies.”
But this argument ignores the fact that obstruction begins long before a nominee reaches the Senate floor, and therefore before the filibuster—the very last hurdle before a confirmation vote—could even be used. Crying foul on judicial emergencies in this way is as absurd as shutting down the government to protest affordable healthcare, and then accusing the Democrats of denying funds to cancer patients when NIH can’t open its doors. (Of course, the Republicans did that too.) Republican Senators have used every delay tactic at their disposal to prevent the President from appointing federal judges in their home states, and the unsurprising result is a growing list of judicial emergencies for which Republicans turn around and blame the President.
Consider the 17 judicial emergencies for which there is no pending nominee. At least 10 of those emergencies can be traced directly to obstruction by home state Republican Senators.
● Six of these emergencies are in Texas—one, in the Western District, is five-years-old—where Senators John Cornyn and Ted Cruz, (and before Cruz, Kay Bailey Hutchison) neglected vacancies for years before finally convening a selection committee that has yet to name finalists.
● In Georgia, Senators Saxby Chambliss and Johnny Isakson are holding Eleventh Circuit nominee Jill Pryor hostage, and demanding a ransom of Republican nominees to fill three emergency vacancies. Pryor would fill a judicial emergency herself if Chambliss and Isakson simply gave their OK.
● In 2010, President Obama nominated law professor Victoria Nourse to fill what is now a judicial emergency on the Seventh Circuit. Nourse had been selected by a Wisconsin selection commission and approved by Wisconsin’s senators at the time. But then newly-elected Republican Sen. Ron Johnson declined to give his support, and her nomination died in 2011.
It’s enough to make you wonder: Why are these Republican Senators spending so much time opposing D.C. Circuit nominees while so many judicial emergencies fester unattended?
There are also 21 judicial emergencies for which a nominee is pending right now, so there is no question that the president has done his duty to put forth nominees for the Senate to confirm. But in eight of these cases, Republican Senators are obstructing by withholding their “blue slips”—a signal of approval—for each nominee. By Senate tradition, a nomination can’t proceed without a blue slip. One of these emergencies is in the Eastern District of North Carolina, which has the single longest district court vacancy in the entire country—the judgeship has been vacant for 2,904 days.
Finally, the Republican judicial emergency argument relies on the false premise that confirming D.C. Circuit judges and filling judicial emergencies are mutually exclusive. In fact, there are eight nominees for judicial emergencies pending on the Senate floor right now, waiting for a vote. Reid filed cloture petitions on three of them Monday night, rendering McConnell’s claim about “spend[ing] the week on nominations that are not emergencies” patently false. If the Republicans were genuinely concerned about judicial emergencies, they would agree to immediately confirm the nominees already on the floor. Instead, they are using every minute of debate time allowed for every nominee Reid wants to confirm before the December recess. This led to a confirmation vote for Nina Pillard at about 1:00 a.m. this morning, and will likely keep the Senate in session through the night, into the weekend, and maybe even through the holidays. The confirmations are all a foregone conclusion, but the Republicans do not care. They are stalling for spite, and for revenge.
It’s clear who really doesn’t care about judicial emergencies