Today marks the 65th anniversary of the landmark Supreme Court decision that declared, “Separate educational facilities are inherently unequal.” Brown v. Board of Education represented a long-overdue remedy to historical injustice; meanwhile, in some states, the decision ignited aggressive defiance and a violent refusal to desegregate. Those painful episodes in our nation’s history are now decades in the past, and we might think that Brown is clearly settled beyond all question and that no one today would act in defiance of that principle. But we’d be wrong.
By Mariah Lindsay and Jane Liu, National Asian Pacific American Women’s Forum
In the fall of 1895, Wong Kim Ark had just returned to San Francisco from visiting his parents, wife and oldest son in China. He had been born in San Francisco; it was his birthplace and his home. He had visited China before and had had no problems returning home. But this trip would be different. Immigration authorities denied him entry, forcing Wong to return to the steamship on which he had arrived. Little did he know that he would spend the next four months on the San Francisco Bay, waiting to find out if he would be allowed to enter the country of his birth.
We are currently witnessing an unprecedented attack on women’s reproductive rights in the United States, one that has materialized on two fronts: the proliferation of more aggressive attempts to ban abortion procedures at the state level, and the nomination and confirmation of growing numbers of anti-choice federal judges. Clearly, the two are related, and they pose an existential threat to reproductive rights as we know them.
“Have you ever seen a situation where a professional attorney at the Department of Justice said, ‘I can’t do it. I’m walking away from this’? I’m gonna resign if I have to, but I will not sign that in good conscience.”
-Sen. Richard Durbin to Chad Readler, nominee to the Sixth Circuit Court of Appeals
Late Friday, December 14, 2018, District Court Judge Reed O’Connor, a George W. Bush nominated judge, declared the entire Affordable Care Act unconstitutional. Criticism of the decision was widespread across the ideological spectrum of the legal community. For the millions of Americans who rely on the Affordable Care Act and its protections for preexisting conditions, this decision is potentially devastating.
On June 11, 2018 President Trump nominated Jonathan Allen Kobes to the U.S. Court of Appeals for the Eighth Circuit. Kobes was nominated to fill the seat of Judge Roger Wollman, who announced he will take senior status.
Kobes’s relative lack of legal experience for a nominee to a U.S. Court of Appeals is noteworthy. According to his Senate Judiciary Questionnaire, he has served as lead counsel in just two trials that led to a verdict. It appears in his questionnaire that he has had just one appellate oral argument. He has argued no cases before the Supreme Court. And, he has no legal scholarship, authored no law review articles, nor made any public pronouncements on legal issues (his only substantive public statements, in a Dutch newspaper, relate to politics and Donald Trump). His career of late has been primarily as a political aide to Senator Mike Rounds.
In the absence of extensive trial, appellate or academic accomplishments, the most notable aspects of his record are his closeness to South Dakota’s junior senator and his personal political views. For example, he has fought reproductive rights, defended President Trump’s attacks on federal judges, and been a member of the Federalist Society and National Rifle Association. Little in his record suggests he will be a fair-minded judge who will properly apply critical rights and legal protections.
On May 15, 2018, President Trump nominated Ryan Nelson to the Ninth Circuit Court of Appeals. If confirmed, Nelson will replace Judge N. Randy Smith, who is scheduled to assume senior status on August 11, 2018.
Based on our review of Nelson’s record, Alliance for Justice opposes his nomination to the Ninth Circuit Court of Appeals.
Ryan Nelson attended law school at the J. Reuben Clark Law School of Brigham Young University. While in attendance, Nelson worked as a research assistant for then-professor Thomas Lee, who currently serves on the Utah Supreme Court and is on President Trump’s Supreme Court short list. He also joined the ultraconservative Federalist Society – an outside group to which Trump has delegated important aspects of the judicial nomination process – and has been a member since that time.
On April 10, 2018, President Trump nominated to the federal bench Britt Grant (40 years old) and Patrick Wyrick (37 years old). Of course the fact that the President has nominated such young and inexperienced persons is by now unremarkable. Ryan Holte was just 34 when nominated to a federal judgeship; Brett Talley, whose nomination was defeated after blog posts defending the early KKK came to light, was 36 years old. What is remarkable about Grant and Wyrick, however, is that this was not the first time they appeared on a White House list. In fact, both youngsters are on Trump’s list as possible Supreme Court nominees.
Their careers mirror each other: both graduated from law school in 2007; each spent a year clerking for federal judges, worked in private practice for less than four years, and then joined their state’s Office of the Attorney General; in 2017, Wyrick was appointed to the Oklahoma Supreme Court and Grant was appointed to the Georgia Supreme Court.
Clearly, Grant and Wyrick are not on the President’s list of potential Supreme Court nominees because of their extensive legal and judicial experience. Seasoned legal luminaries they are not (in contrast with just one person recently considered for the Supreme Court, Merrick Garland, who at the time of his nomination had nearly 40 years of legal experience — nearly 20 as an appellate judge). So why are a 37 year old and a 40 year old with limited judicial experience on the short list for the Supreme Court?
That same belief in the cleansing power of transparency led to the creation of Sunshine Week for the federal government, which this year falls on March 11-17. Sunshine Week is an opportunity to focus on accountability in government, and from the theater at the National Archives to the halls of the Department of Justice, the government is supposed to use this week to acknowledge our right to know how federal offices and agencies are spending their money and fulfilling their missions.
Notably, even the Senate Judiciary Committee is getting in on the action, with a hearing on “The Freedom of Information Act: Examining the Administration’s Progress on Reforms and Looking Ahead.”
On September 28, 2017, President Trump nominated Ryan Holte to the United States Court of Federal Claims. Holte joins a string of Trump judicial nominees whose youth and inexperience are especially striking. Notably, the nomination of another recent judicial candidate who had never tried a case, Brett Talley, was sidelined when his lack of qualifications was widely derided on the Hill and in the press. Holte’s fate will soon be decided.
Like Talley, Holte is in his mid-thirties: 34, as of this writing. He graduated from law school less than ten years ago, and has openly admitted, “I have not tried a case.” Nominations to the Court of Federal Claims are not evaluated by the American Bar Association; however, if they were, Holte would be immediately deemed unqualified on the basis of his lack of experience.
Holte’s lack of experience is even more notable given the White House’s own claims about its judicial nominations. In response to reports that President Trump has nominated the fewest women to the federal bench in recent history, the Chicago Tribune reported that “White House spokesman Hogan Gidley says Trump is focused on qualifications and suggests that prioritizing diversity would bring politics to the bench.” Holte’s nomination stands in sharp contrast to this claim, and suggests the opposite: that the White House is in fact prioritizing ideology over credentials – while it continues to place candidates who are predominantly white men on the bench. Read more
On September 29, 2017, President Trump nominated Howard C. Nielson to the United States District Court for the District of Utah. Nielson’s nomination continues Trump’s trend of offering lifetime appointments to ideological attorneys and judges.
Alarmingly, Nielson shares with Trump a propensity for attacking judges’ integrity based on personal characteristics. During the presidential campaign, Trump attacked federal judge Gonzalo Curiel and said the judge should recuse himself from a case solely because of his “Mexican heritage.” Just like Trump, Howard Nielson, in taking a leading role in the effort to prohibit same-sex marriage in California, argued that a federal judge should be disqualified from hearing the case solely because he was gay.
President Trump and Nielson also share records of attacking the independence of the Justice Department. President Trump has demanded loyalty from the FBI Director, politicized prosecutorial decisions, and tried to purge non-political law enforcement personnel whom he perceives as insufficiently supportive of his administration. Nielson fits right in: As an official in the Justice Department under George W. Bush, Nielson was part of the “Screening Committee” that impermissibly, as the Department’s Justice Department Inspector General concluded, “considered political or ideological affiliations” in making non-political hiring decisions and weeding progressive applicants out of civil service jobs. Read more
President Trump nominated Brett Talley on September 7, 2017 to the United States District Court for the Middle District of Alabama. Talley is exceptionally young, like several of Trump’s judicial nominees, and he lacks significant legal experience. However, he has firmly established conservative political credentials, as a former writer for Mitt Romney’s 2012 presidential campaign, a former speechwriter for Sen. Rob Portman, and a blogger and political commentator.
Among the most notable writings on his blog are his strenuous arguments against gun safety measures, even in the immediate aftermath of the Aurora, Colorado and Newtown, Connecticut shootings. In the wake of the tragic mass shooting in Las Vegas, his views are especially disturbing and he should be questioned closely about them.
Alliance for Justice has prepared this brief fact sheet to highlight areas of Talley’s record in which we believe greater scrutiny by the Senate is warranted. This report does not attempt to analyze the entirety of his record. Read more
On Wednesday the Senate Judiciary Committee held Amy Coney Barrett’s confirmation hearing for a seat on the Court of Appeals for the Seventh Circuit. Prior to the hearing, Alliance for Justice and others had raised serious concerns about Barrett’s past academic writing, which suggested that she would put her personal views ahead of the law and would feel free to decline to apply Supreme Court precedent.
Democratic senators demanded that Barrett answer tough questions about her most controversial writings. But instead of fully and truthfully answering senators’ questions, Barrett repeatedly gave misleading testimony. In some instances, Barrett’s answers flatly misrepresented statements she had given in the past. Read more
- It was abundantly clear that there was not adequate time to question all three controversial nominees. It is exceedingly rare for the Senate Judiciary Committee to consider more than one circuit court nominee per nomination hearing.
- Senator Whitehouse rightly highlighted the White House’s and some Republicans’ refusal to scrutinize the records of Bush and Schiff, saying, for example, “if President Obama had sent a nominee that had called Justice Kennedy a judicial prostitute, the other side of this dais would have its hair on fire about that.” In fact, Senator Lee said that comments made by Goodwin Liu, an Obama nominee to the Ninth Circuit, about Samuel Alito “were offensive . . . because they were a misleading and unwarranted personal attack on a dedicated public servant.” Liu had said that Justice Alito had a vision for America that ignored discrimination and promoted an expansive role for the police state. Liu also said that Justice Alito “approaches law in a formalistic, mechanical way abstracted from human experience.”
“His comments about [that Supreme Court Justice] were offensive . . . because they were a misleading and unwarranted personal attack on a dedicated public servant.”
Your first guess might be a Democratic senator discussing Damien Schiff—nominated for a position on the U.S. Court of Federal Claims—who called Justice Anthony Kennedy “a judicial prostitute, ‘selling’ his vote as it were to four other Justices in exchange for the high that comes from aggrandizement of power and influence, and the blandishments of the fawning media and legal academy” (emphasis added).
You would be wrong. Read more
President Trump has nominated Damien M. Schiff, Senior Attorney at the Pacific Legal Foundation and member of The Federalist Society, for a seat on the U.S. Court of Federal Claims. As noted in his Senate Judiciary Questionnaire, in a series of blog posts on both the Pacific Legal Foundation’s Liberty Blog and his own personal blog entitled Omnia Omnibus, as well as in other writings, Schiff repeatedly demonstrates his extreme views and his unfitness to serve as a judge.
First, Schiff’s writings include personal attacks on the integrity of a sitting Supreme Court justice, advocates, and progressives. This alone demonstrates he lacks the judicial temperament to serve as a judge. Read more
Paperwork submitted by John K. Bush, President Trump’s nominee for the Court of Appeals for the Sixth Circuit, reveals that Bush has spent a decade writing inflammatory and, often, offensive blog posts for the website Elephants in the Bluegrass.
Writing under a pseudonym, G. Morris, Bush authored more than 400 entries for the ultraconservative blog run by his wife Bridget Bush. While Bush pontificates on a broad swath of issues, one common theme runs throughout his writings: Bush displays a remarkable contempt for any issue he deems liberal or progressive, often launching into personal attacks on individuals he disagrees with. Bush’s writings should disqualify him for a lifetime seat on the federal bench for two reasons. First, Bush’s writings raise serious concerns about whether, as a judge, he will be able to approach the issues presented to him with an open mind, applying the law to the facts of the case without regard to his personal ideology. Second, Bush’s distasteful rhetoric demonstrates that he lacks the judicial temperament necessary to serve as a federal judge. Read more
On May 10, President Trump nominated John K. Bush, a corporate lawyer in Louisville, Kentucky, to fill a seat on the Court of Appeals for the Sixth Circuit. Like other recent nominees, he fulfills the President’s pledge to outsource his constitutional role in nominating judges to the Federalist Society, the ultraconservative advocacy group that has taken over the judicial nominations process. Bush has deep ties to the organization, and in fact currently serves as the President of the Federalist Society’s Louisville Lawyers Chapter.
Bush’s nomination also seems designed to fulfill another pledge of the President’s—to weaken Constitutional protections for members of the press, whom the President has called “the enemy of the people.” Bush, like Trump, believes New York Times v. Sullivan, the seminal case that articulated broad protections for members of the press covering public officials and actions, was wrongly decided. Read more
As Hurricane Matthew approached Florida, Governor Rick Scott called for the evacuation of large swaths of the state’s eastern seaboard. Over a million people left their homes, and the storm tragically took nine lives in the state. Hurricane Matthew also disrupted an important event in the state: Florida’s voter registration deadline of October 11. Despite ordering over a million people to leave their homes, Governor Scott refused to extend the deadline.
Fortunately, his decision was not the final word on the issue. Read more
As the Republican Senate has brought judicial confirmations to a standstill, refusing even to hold a hearing for Supreme Court nominee Merrick Garland, and confirming lower court judges at a historically slow rate, the most obvious explanation for all the obstruction has been politics: Republicans would rather spite President Obama and preserve judicial vacancies for a Republican president than ensure a fully-functioning judiciary. But for Thom Tillis, the Republican Senator from North Carolina and member of the Judiciary Committee, the problem appears to be (for better or worse) an alarming amount of misinformation, whether it be the importance of filling judicial vacancies, how bad the vacancy crisis has become under GOP leadership, or the Senate’s basic constitutional duty to confirm judges.
On Wednesday, just before the Senate left for a seven-week vacation, Tillis objected to voting on slate of uncontroversial judicial nominees because, in his words, confirming judges has “nothing to do with doing our jobs.” That startling claim would certainly surprise the Constitution’s drafters, who wrote that the Senate must provide “advice and consent” on judicial nominations, and Democratic members were no less shocked. “I’m not sure what version of the Constitution you’re reading that doesn’t say confirming judges is part of your job in the United States Senate,” Senator Elizabeth Warren said. Senator Mazie Hirono added, “Of course confirming judges is part of the Senate’s job. In fact, only the Senate can do that.” Read more
Since Republicans took over the Senate in January 2015, judicial nominees have been subject to systematic, politically motivated obstruction led by Senate Judiciary Committee Chairman Chuck Grassley.
This senseless obstruction goes beyond the unprecedented refusal even to give Supreme Court nominee Merrick Garland a hearing. Under Grassley’s leadership, this Congress is on pace to be the worst for judicial confirmations in more than a half-century. While Grassley refuses to consider dozens of qualified, noncontroversial nominees, the number of judicial vacancies has nearly doubled, and the number of officially-designated judicial emergencies has increased 150%. While leading the Judiciary Committee, Grassley’s prioritized partisan politics over staffing our courts, needlessly creating a judicial vacancy crisis that threatens our nation’s justice system.
With the Senate Republicans’ unprecedented obstruction of Merrick Garland’s nomination and a trio of current justices soon to be or already over age 80, the future of the Supreme Court is central to this year’s election. But the focus on the Supreme Court overshadows the election’s larger meaning for the courts. No matter who the next president is, he or she will have also a significant impact on the makeup of the federal judiciary by appointing judges to the lower courts. In this post, we predict how significant that impact will be. By looking at how the circuit courts have changed in the recent past, combined with how many judges are eligible to retire in the coming years, we get a relatively clear picture of how the next two presidential elections will affect the circuit courts’ composition.
Because the Supreme Court hears only around 80 cases each year, the circuit courts, which on the whole decide over 30,000 cases per year, often render the final word on important questions of federal and constitutional law. This is all the more true with an eight-member Supreme Court that can deadlock without resolving even the small number of cases it does hear. That happened with the latest challenge to the Affordable Care Act’s contraception mandate, which the Court recently remanded to various courts of appeals without addressing the merits. And with just months to go, circuit courts will decide whether the November elections will be held under the cloud of discriminatory voter ID laws and other voting restrictions. The upshot is clear: when it comes to decisions that profoundly impact our daily lives, the Supreme Court isn’t the only game in town. Read more
An extraordinary idea surfaced at the Senate Judiciary Committee’s weekly business meeting last Thursday. Senator Diane Feinstein, a member of the committee since 1993, proposed that senators stop debating the meaning of the so-called Thurmond Rule—which we’ve previously described as “a figment of the partisan imagination invoked to give an air of legitimacy to . . . pure obstruction”—and that instead members of the committee “just sit down and do our job” to fairly consider and process judicial nominees.
Feinstein’s proposal may sound unremarkable to hardworking Americans who do their jobs every day without fanfare or prodding, but for this Republican-led Senate the idea of doing actual work feels revolutionary. Since the Republicans took over in 2015, the Senate has confirmed a paltry 18 judges, putting it on pace for the fewest judicial confirmations in more than a half-century. Only two of the 18 confirmed are circuit court judges, a number that, if it holds, would be the lowest since the 55th congress in 1897-1898. And in the Judiciary Committee, Chairman Chuck Grassley is refusing to hold a confirmation hearing for a Supreme Court nominee who has already been pending for 70 days, to say nothing of the 29 lower court nominees who still need a hearing. Read more
Tonight the Senate will vote on the nomination of Paula Xinis to be a district court judge in Maryland. It is just the seventh confirmation vote on a judge this year, and Xinis, who is endorsed by both Maryland senators and has been rated “unanimously well qualified” by the American Bar Association, should be easily confirmed. When senators cast their votes, they will of course determine whether Xinis will serve as a trial court judge. But their votes will also speak to a broader question about our federal judiciary and the legal profession: If a lawyer spends her career representing marginalized, vulnerable populations against powerful interests—if, for example, she declines the high pay of corporate law and the prestige of a U.S. Attorney’s office to work as a public defender—is she disqualified from serving as a judge?
The Senate finally voted on Waverly Crenshaw, Jr.’s nomination to be a district court judge in the Middle District of Tennessee last night after a 432-day wait. Senate Republicans delayed Crenshaw’s confirmation despite his having the recommendation of Tennessee’s two Republican senators and the unanimous support of the Judiciary Committee. He’s just the 17th judge confirmed since Republicans took over the Senate in January 2015, putting the 114th Congress on pace for the lowest number of judicial confirmations in more than 60 years, and way behind the 68 judges that George W. Bush appointed in his last two years.
Judiciary Committee Chairman Chuck Grassley celebrated this rare occasion of the Senate doing its job by dusting off one of Senate Republicans’ favorite misleading talking points—to wit, that there’s no legitimate gripe about confirmations because President Obama has had more total judges confirmed at this point than did Bush. Read more
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
With the Senate controlled by a newly-elected Republican majority, 2015 turned out to be the single worst year for judicial confirmations in over half a century.
Instead of keeping their promise to follow “regular order” and “work to confirm consensus nominees,” Senate Republicans obstructed and delayed the confirmation process at every opportunity. Only 11 judges were confirmed, the fewest in a single year since 1960. Only one court of appeals judge was confirmed, the worst since none were confirmed in 1953. And as confirmations dwindled, vacancies shot up. In 2015, vacancies rose from 43 to 66 (they’ll hit 70 by January 1), and officially-designated “judicial emergencies” went up nearly 160% from 12 to 31. Read more
The tortured history of Restrepo’s odyssey through the Senate confirmation process—from a missing blue slip to a delayed confirmation hearing to a months-long wait on the Senate floor—has been well documented. Yet if Majority Leader Mitch McConnell’s promise to follow “regular order” means anything, Restrepo’s wait should be at its end: save for one nominee to the Court of International Trade, Restrepo is next in line on the Senate’s Executive Calendar for a confirmation vote. Alas, McConnell announced yesterday that he’s reneging on his promise, and the Senate will skip over Restrepo to vote instead on Eastern District of Tennessee nominee Travis McDonough—a nominee, not coincidentally, recommended by two Republican senators. This transparently partisan maneuver suggests that McConnell and the Republican leadership have no intention of confirming Restrepo this year, choosing instead to leave open a “judicial emergency” on the Third Circuit for the sake of frustrating President Obama. 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
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.
At Wednesday’s Senate Judiciary Committee hearing, Republican Senator Jeff Sessions provided a model lesson in why there is so little professional diversity among our federal judges.
Turning to District of Maryland nominee Paula Xinis, Sessions unleashed a line of accusatory questions suggesting that Xinis’ career as a public defender and civil rights lawyer showed an “agenda” that she would invariably “bring to the bench.” The questions were absurd and unfounded, but they could not be dismissed as such. Instead, Xinis had to patiently explain that protecting the rights of America’s most vulnerable and disenfranchised had not left her tainted with disqualifying bias.
Unfortunately, such questions are not unusual, and Jeff Sessions is not alone in asking them—rather,
they illustrate a systemic problem with the current process of judicial selection and the deeply entrenched presumptions attached to certain legal careers.
Public defenders and civil rights lawyers (as well as plaintiffs’ lawyers generally) are dramatically underrepresented among federal judges. Just 14 percent of President Obama’s judicial nominees have been public defenders, while about 41 percent have been prosecutors. Likewise, only 3.2 percent of nominees have worked as civil rights lawyers, while 72 percent have been corporate attorneys. Xinis’ nomination reflects continued improvement—already in 2015 the president has nominated four public defenders (out of 12 total nominations), and Rhode Island’s senators recently recommended a potential fifth public defender for nomination—yet the wide disparity remains.
Beyond specific categories of law practice, these numbers reveal a broader truth: our federal courts are staffed largely with judges who, in their legal careers before taking the bench, represented only the most powerful in American society, either defending massive corporations or wielding the enormous power of the state against criminal defendants. Only a small minority of judges have experience representing indigent defendants or other low-income clients, the very people who depend most on our courts to provide equal justice.
In part, this is due to the mistaken but rarely questioned notion that lawyering to preserve influence and privilege—to cement rather than challenge the status quo through legal practice—is somehow impartial and cannot possibly come to bear in judicial decisionmaking. In a recent panel discussion led by Alliance for Justice, D.C. Circuit Judge Nina Pillard noted how “[t]here’s a sense, somehow, in the process of finding judges or candidates, that being in a large corporate law firm is neutral and being an advocate for people who have been subject to discrimination or retaliation or repression of their speech or their religious beliefs is not neutral, and . . . I would question that.”
This skewed sense of what’s “neutral” emerged during Senator Sessions’ questioning of Paula Xinis. Sessions felt compelled to verify that someone with Xinis’ professional background—which also includes time as a complaint examiner in D.C.’s Office of Police Complaints—would not be biased against police officers. After asking whether “police have a responsibility to try to maintain an orderly and safe environment for the people who live in a city,” and whether a judge “should show empathy for the difficulties that police officers face as well as” for those who allege that police have violated their civil rights, Sessions closed with this:
Can you assure the police officers in Baltimore and all over Maryland that might be brought before your court that they’ll get a fair day in court, and that your history would not impact your decisionmaking? And I raise that particularly because I see your firm is representing Mr. Freddie Gray in that case that’s gathered so much attention in Maryland, and there’s lots of law enforcement officers throughout the state and they want to know that they don’t have someone who has an agenda to bring to the bench—can you assure them that you won’t bring that to the bench?
The implication is clear: if you defend people against criminal prosecutions, and especially if you represent people in civil rights cases against police, there is a presumption of bias that you must rebut before the Judiciary Committee. One wonders whether Sessions has asked a prosecutor if she would bring to her judicial role an “agenda” against indigent criminal defendants. Or if a corporate defense lawyer would be biased against employees who allege unlawful discrimination or unpaid wages. I doubt very much that he has.
The depth of this double-standard is underscored by Sessions’ invoking Freddie Gray in particular. Gray, of course, was fatally injured in Baltimore police custody after being arrested without cause. His death led to grand jury indictments for six officers on homicide and assault charges, and the Department of Justice opened a civil rights investigation. Under these circumstances, representing Gray’s family hardly seems like an act of radical subversion that would call into question one’s ability to fairly and impartially apply the law. But in Sessions’ view, any challenge to police authority, even in a case as egregious as Freddie Gray’s, can be done only in pursuit of some extra-legal “agenda.”
Professional diversity in the judiciary matters. Judge Pillard called it “a deficit in our courts” that “we haven’t had [judges] who’ve represented less well-to-do, less institutionally-established clients[.]” And the point isn’t that one kind of lawyer is neutral and impartial while another kind of lawyer is not. Nor is it that corporate lawyers are necessarily bad judges and public defenders are necessarily good. It’s that all judges, regardless of background, are shaped by the perspectives and experiences acquired over many years in the law. Fair and equal courts require a diversity of these perspectives, not any one in particular, and this week’s hearing reminds us of how hard that is to achieve.
But this much is clear: the problem is much bigger than Senator Sessions, and solving it requires everyone involved in judicial selection and who cares about the courts to talk openly about and promote the value of professional diversity.
There is no doubt the state of Texas is at the epicenter of what is a growing judicial vacancy crisis. It has the most judicial vacancies of any state in the country (nine, all without a nominee), a quarter of the nation’s judicial emergencies, and some of the longest-standing vacancies in the judiciary. Former Southern District of Texas Judge Janis Graham Jack’s seat has been vacant for over four years. Former Fifth Circuit Judge Emilio M. Garza’s vacant Texas seat is fast approaching its third anniversary.
Yet, despite this dire situation, Senator John Cornyn, R-Texas, wrote in a recent letter to the editor that he had been “working . . . to fill openings as they arise,” pointing to the confirmation of 12 Texas judges in the past six years of President Obama’s administration.
While we commend Senator Cornyn for working with the president to find 12 qualified judges, that hasn’t been nearly enough to keep pace with the growing number of vacancies in the state. As we have noted many, many times, confirmation totals are meaningless unless considered beside the number of vacancies that need to be filled. There is no magic number of confirmations that is “enough”—empty benches need judges.
And far from “filling openings as they arise,” the senator’s sluggish pace on nominations and confirmations has allowed Texas vacancies to amass. As we detail in our report on Texas, Senators Cornyn and Ted Cruz, R-Texas, have refused to screen candidates for seats they know will soon be vacant, waiting instead until the judge leaves office with no one to take on their workloads. Several judges—to no avail—have given the senators a year’s notice of their intent to retire and urged them to start seeking a replacement immediately. This inefficient approach only allows current vacancies to languish and new retirements to pile up.
The nine vacant Texas seats have now sat empty for a combined 13 years. If Senator Cornyn is serious about finding “high-caliber legal minds” for the bench, there are plenty of places to start. Rather than focus on what he’s accomplished, it’s time to look at what’s left to do.
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.
By Kyle Barry
AFJ Director of Justice Programs
Apparently the looming July 4th recess isn’t enough for Chuck Grassley to schedule a long-overdue judicial confirmation hearing. Instead, the Judiciary Committee Chairman appears to be guaranteeing at least three consecutive weeks without a confirmation hearing. Such needless delay, so clearly motivated by a partisan desire to obstruct the president’s judicial nominees, is never acceptable. But there is a more specific reason for concern: two pending nominees—Mary Barzee Flores for the Southern District of Florida, and Julien Neals for the District of New Jersey—have already waited four months for a hearing, and both are nominated to critical “judicial emergencies” in their home states.
Indeed, Florida and New Jersey are two of the states hit especially hard by the great confirmation slowdown of 2015. The Senate has confirmed only four judges this year; as a result, vacancies nationwide have increased from 43 to 59, and judicial emergencies—the official designation for courts that need more judges to handle their current caseload—have more than doubled, from 12 to 27. New Jersey alone has four new vacancies in 2015 (tied with New York for the most in any state) and all of them are judicial emergencies. There are three pending New Jersey nominees waiting for a hearing, including two (Neals and John Vasquez) nominated before April.
In Florida, Flores has been pending since February to fill a judicial emergency that is more than a year old. Florida also got its second judicial emergency this month when a Middle District seat opened up, and a future Northern District vacancy has been announced for December. With the new vacancies this year, Florida and New Jersey have become two of just six states with multiple judicial emergencies. And yet, Sen. Grassley refuses to take one simple step to address this growing problem: quickly process pending nominees through committee so they can be confirmed.
Flores’ nomination also reflects a troubling pattern of obstruction that has emerged under Republican leadership, one in which Republican senators publicly endorse a nominee from their home state, but then do virtually nothing to get them confirmed. We’ve seen this on the Senate floor where nominees recommended and ostensibly supported by powerful Republican senators like President pro tempore Orrin Hatch of Utah, and Majority Whip John Cornyn of Texas, were forced to wait months for what was ultimately a unanimous confirmation vote.
In the Judiciary Committee, this obstruction has taken a very specific form for nominees, like Flores, from states with one Republican and one Democratic senator. What’s happening with Flores now is precisely what happened—and continues to happen—with Third Circuit nominee L. Felipe Restrepo.
President Obama nominated Restrepo last November based on the joint recommendation of Republican Pat Toomey and Democrat Bob Casey of Pennsylvania. Casey then quickly returned his “blue slip” to the Judiciary Committee, signaling that he endorsed the nomination and that Chairman Grassley could move forward with a hearing. But Toomey did not follow suit. While he continued to express public support for Restrepo, he withheld his blue slip for over six months, enabling Grassley to delay Restrepo’s hearing under the pretext of completing a “thorough background investigation.” Toomey and Grassley finally buckled under intense public pressure, and Restrepo had a hearing on June 10. But nothing has happened since, and now Toomey looks unwilling to demand that Grassley and the other committee Republicans vote Restrepo onto the Senate floor.
Similarly, Flores was recommended by Republican Senator Marco Rubio and Democratic Senator Bill Nelson, and Nelson returned his blue slip soon after her nomination. Yet four months later, and despite mounting calls to fill the judicial emergencies in Florida, Rubio has done nothing to ensure that his fellow-Republicans actually move Flores toward confirmation.
With all these hearing delays, Grassley has fallen behind even his own announced pace for processing nominees. Grassley has held himself to “the Leahy standard in 2007,” when Senator Patrick Leahy was the committee chairman, and Democrats controlled the Senate under President George W. Bush. But at this point in 2007, Senator Leahy had convened five confirmation hearings for 17 judicial nominees, while only 13 nominees have had hearings this year. This is in addition to the enormous disparity on confirmations—four this year compared to 21 by the end of June in 2007.
The American people know better than to countenance this sort of form-over-substance support for judicial nominees we’ve seen from Republican leadership and home-state Republican senators. Americans need judges to decide cases and administer justice, not vague assurances that someday—“this year,” maybe—they’ll have enough judges in their district. This week, the people of New Jersey and Florida could have been a step closer to getting the judges they so desperately need, but, instead, their wait for justice is only further delayed.
Last week, when asked if only district court judicial nominees—signed off on by Republican senators—would be confirmed this session, Senator Majority Leader Mitch McConnell responded that it was “highly likely.” Later, a spokesperson clarified that “[w]e probably will have a circuit court nominee” confirmed.
Either way, these comments represent a major retreat from the “regular order” McConnell promised upon becoming majority leader. Both Republican and Democrat-controlled senates have confirmed appellate court nominees in the final two years of an opposition presidency, usually in states with a senator from the president’s party. This Senate, by contrast, has failed to confirm a single appellate court judge. Under Senator McConnell’s leadership, eminently qualified nominees have been slow-walked through every step of the process.
L. Felipe Restrepo, a nominee to the Third Circuit, has waited over 200 days for a hearing in the Senate Judiciary Committee despite support from Republican Senator Pat Toomey. Judge Restrepo will finally have his hearing tomorrow afternoon. Soon after, the committee should report him to the Senate floor. How long his nomination languishes there will be yet another test of McConnell’s commitment to regular order.
In the last Congress of President George W. Bush’s second term, Senate Democrats confirmed 10 circuit nominees. They included vacancies in states represented by Republicans, Democrats, and mixed delegations. Most notably, Judge Leslie Southwick was confirmed to the Fifth Circuit despite opposition from progressive advocacy groups and three-fourths of the Democratic caucus.
* * *
“Probably” confirming “a circuit court nominee” would make this Senate historic—just not in the way Senator McConnell would like. It would mark an unprecedented level of obstruction rather than the regular order the American people were promised. Our nation’s appellate courts need to be filled. It’s time for the Senate to start confirming judges.
The Third Circuit Court of Appeals needs another judge.
For the past 675 days, the former seat of Senior Judge Anthony Scirica has sat vacant. The Administrative Office of the U.S. Courts named the seat a judicial emergency earlier this year because the circuit cannot properly manage its current caseload without another active judge.
The problem should be easy to solve. On November 12, 2014, with the support of Pennsylvania Senators Bob Casey and Pat Toomey, President Obama nominated District Court Judge L. Felipe Restrepo to fill the spot. Yet, 176 days later, Senate Judiciary Chairman Chuck Grassley has not even held a hearing on Judge Restrepo’s nomination.
Everyone agrees that Judge Restrepo is qualified for the position. He was confirmed as a federal district court judge just two years ago on a voice vote. The American Bar Association rated him “well qualified.” Senator Toomey, a Republican, said the judge would “make a superb addition to the Third Circuit.”
So why the delay? In a radio interview on Tuesday, Senator Grassley said that Judge Restrepo was going through a “thorough vetting process” and that the committee is “doing what we normally do.”
But this delay is anything but normal. At 176 days, Judge Restrepo has already waited nearly three times
as long for his committee hearing as the average wait for Obama’s other circuit court nominees. Kara Farnandez Stoll, who was nominated to a federal appeals court the same day as Judge Restrepo, had a confirmation hearing on March 11 and was voted out of committee on April 23. This disparity is especially telling because Judge Restrepo just went through a rigorous background investigation before he was confirmed to his district court seat in 2013. If anything, having earned the Senate’s approval less than two years ago, Judge Restrepo’s vetting process should take less time, not more.
And it’s not like Judge Restrepo has been waiting behind a long line of nominees. Stoll is the only circuit court nominee who’s had a hearing in 2015, and on March 11 Grassley convened a hearing with only two nominees on the witness list. Judge Restrepo should have had his hearing then, if not before, but Grassley passed him over.
Justice delayed is justice denied. For the people of Pennsylvania and the rest of the Third Circuit, justice has been denied for far too long. It’s time for Senator Grassley to end his political charade and to hold a hearing for Judge Restrepo. The time for a “thorough vetting process” has come and gone, and there is a judicial vacancy that desperately needs to be filled.
With a growing chorus calling for Senate Republicans to drop their obstruction of President Obama’s judicial and executive nominees, Judiciary Chairman Chuck Grassley is finding it hard to explain away all the delays.
Yesterday, Grassley was asked about attorney general nominee Loretta Lynch, who has been pending for more than five months, longer than any other attorney general nominee in over 30 years. Straining credulity, Grassley claimed that November and December should not be counted toward Lynch’s overall wait time, because Democrats controlled the Senate back then, and Republicans did not take control until January.
That claim is absurd on its own—White House Press Secretary Josh Earnest called it “an astounding display of duplicity”—but it’s even worse considering what Grassley has said about judges. As we’ve noted before, although the Senate has in fact confirmed only one judge this year, Grassley claims that 11 more judges, reported out of committee and confirmed during the lame duck session last congress, should be counted toward Republican totals for this congress.
As reported by Reuters:
A spokeswoman for Senator Charles Grassley, the new chairman of the Senate Judiciary Committee, said that by the senator’s count, Obama already had 11 nominees confirmed in the new Congress because Democrats pushed them through during a “lame duck” session last [year], against tradition.
In other words, Grassley is perfectly happy to take credit for confirmations that happened last year, just not the delay. He can’t have it both ways.
It’s an inescapable fact that judicial vacancies have worsened under Republican Senate leadership, but that doesn’t mean the GOP accepts responsibility. After the Senate finally confirmed its first judge of the year yesterday, Senator John Cornyn, R-Texas, was asked about the rising number of vacancies—an astonishing 10 of which are in Texas—since Republicans took over the Senate.
He blamed the president.
“We can’t nominate the judges,” he told the Dallas Morning News. “The president has to nominate the judges. The White House doesn’t seem to be making this a priority. It’s not really a partisan difference.”
This remarkable claim ignores both the Senate’s failure to confirm existing nominees, and the essential role that home-state senators play in nominating judges for vacancies in their own states.
Let’s look at the facts.
It took more than three months for the Republican-controlled Senate to confirm its first judge of 2015. Southern District of Texas Judge Al Bennett, who had been recommended to the president by Cornyn and fellow Texas Republican Ted Cruz, was unanimously confirmed yesterday after waiting more than six weeks for a floor vote. By this time in 2007, the penultimate year of the George W. Bush administration, Senate Democrats had confirmed 15 judges.
The delay to confirm Bennett is just one example of Senate Republicans’ do-nothing approach to judicial nominations. There are still three district court nominees pending on the Senate floor, including two more nominated to critical vacancies in Texas’s overburdened Southern District, and one to the District of Utah. All three have the support of their Republican home-state senators. Yet instead of pushing Majority Leader Mitch McConnell, R-Ky., to schedule votes for Texas judges, Cornyn—who is the Senate’s Majority Whip, not merely a rank-and-file member—dismisses the vacancy problem with a partisan attack on the president.
In the Judiciary Committee, Chairman Chuck Grassley, R-Iowa, has held only two confirmation hearings in 2015, passing over five nominees who have been waiting for a hearing since November 2014.
While the Senate sits on its hands, judicial vacancies have jumped from 44 to 54, and “judicial
emergencies,” the official designation for courts with the most dire need for judges, have nearly doubled, increasing from 12 to 23. These numbers could be reduced by confirmations, but the Senate hasn’t acted.
Republicans have also failed to recommend nominees for vacancies in their home states. As Cornyn well knows, home-state senators typically take the lead in selecting nominees, particularly for district court vacancies, and the president will not nominate without the senators’ support. Cornyn’s explanation helpfully ignores this practice, but it is no accident that 89 percent (32 of 36) of current judicial vacancies without a nominee are in states with at least one Republican senator.
What’s more, the state in most desperate need of judicial nominees, by far, is Texas. There are nine district court vacancies in Texas (eight are current and another is coming next month), and the White House is waiting for Cornyn and Cruz to submit recommendations for seven of them. Worse, five of these vacancies are judicial emergencies, meaning that Texas’s federal courts are facing a crushing caseload they cannot handle without more judges.
Sadly, this isn’t the first time that Cornyn has deflected blame on Texas vacancies. Back in May 2013, during a Judiciary Committee hearing, Cornyn said that “the president has to nominate someone before the Senate can act on it. It’s as simple as that.” In response, Senators Sheldon Whitehouse, D-RI, and Patrick Leahy, D-VT, explained why the president cannot unilaterally nominate judges in Texas. We do so again here, but we’d rather Cornyn, and the full Senate, simply do the work of confirming judges so that judges can do the work of providing justice for the American people.
Texas Senator Ted Cruz clerked for then-Chief Justice William Rehnquist, argued before the Supreme Court nine times, and was Texas’s Solicitor General. One might suspect he knows a thing or two about the Constitution.
But his knowledge of that document appears to be lacking – and his own constituents in Texas may end up paying the price.
Although three judicial nominees to longstanding Texas vacancies are set for a hearing next week, Senator Cruz has doubled down on his position that the Republican-controlled Senate should “not confirm a single nominee—executive or judicial—outside of vital national security positions” until President Obama rescinds his recent executive order on immigration.
Senator Cruz himself recommended these nominees to the president, and two of the three would fill benches considered “judicial emergencies” because of overwhelming caseloads in the Southern District of Texas. But the most striking thing about Cruz’s position is that it’s based on a bizarre and obvious misreading of the Constitution.
In a recent Politico Op-Ed, Cruz claimed that holding nominees hostage “is a potent tool given to Congress by the Constitution explicitly to act as a check on executive power. It is a constitutional power of the majority leader alone, and it would serve as a significant deterrent to a lawless president.” Then, responding to CQ Roll Call today, Cruz’s spokesperson said that “Sen. Cruz stands behind what he said” in Politico and that “holding nominations is a constitutional power given to Senate leadership and it is up to leadership to exercise that power.”
The problem is that while the Constitution empowers the full Senate to provide “Advice and Consent” on nominations, it makes no mention of Senate leadership, nor does it confer power to “hold nominations” on any individual senator—majority leader or otherwise. And there is no basis to claim that advice and consent exists “explicitly” to deter the president from issuing executive orders completely unrelated to judicial nominations.
There is no question that Senate Republicans have several means of obstructing the president’s nominees if they so choose; that was true even before they became the majority. But it’s misleading at best to give mere partisan obstruction and political gamesmanship the imprimatur of the Constitution. Ted Cruz knows better, and we think the American people do too.
A federal district judge in the Western District of Pennsylvania has ruled that President Obama’s executive order on immigration is unconstitutional.
For those of us who know the track record of the judge – President George W. Bush appointee Arthur Schwab – the ruling comes as no surprise.
Paul Gordon of People for the American Way has already explained how Judge Schwab’s opinion betrays his ideological opposition to the president’s executive order. For example, Judge Schwab reached to declare the new policy unconstitutional without first deciding whether the policy even applies to the defendant in this case. He also harps on statements that President Obama made about immigration reform in 2011—statements that, Gordon points out, “make great fodder for Fox News, [but] don’t address the current executive actions, and the only reason to include them in a judicial opinion is to score political points.”
But while Judge Schwab’s opinion is troubling, it isn’t the first time his political views have trumped his duty to be an impartial judge.
In 2005, famed forensic pathologist Dr. Cyril Wecht had a public feud with Allegheny County District Attorney Stephen Zappala over Zappala’s failure to investigate or prosecute white police officers who had allegedly killed black citizens. Soon after, Wecht was indicted on public corruption charges that many believed to be politically motivated.
Judge Schwab was assigned to the case, and made a number of unorthodox rulings against Wecht. In one instance, he prohibited Wecht from making nearly any objection to the government’s 240,000 pages of evidence — including an objection arguing that some of the evidence was illegally seized. In another ruling, Schwab kept the names of the jurors under seal.
The first trial resulted in a hung jury. On appeal, the Third Circuit called Schwab’s rulings “inappropriate,” “troublesome,” and “strange and unsettling,” and took the unusual step of removing him from the case. Prosecutors decided not to retry the case.
More recently, Judge Schwab wrote an opinion that criticized the National Labor Relations Board for serving as the “litigation arm of the [Service Employees International Union].”
Given Schwab’s history of playing political favorites, it is no surprise that, when the Allegheny County Bar Association conducts its annual judicial survey, Judge Schwab consistently ranks dead last among state and federal judges in both temperament and impartiality.
Faced with Judge Schwab’s latest ruling, the Third Circuit should once again reverse, ensuring that President Obama’s executive order continues to protect millions of American children and families.
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.
On Tuesday, the Senate Judiciary Committee held a confirmation hearing for three district court nominees from Texas, clearing an important hurdle on the path toward resolving the judicial vacancy crisis in that state.
In June, President Obama nominated Robert “Trey” Schroeder and U.S. Magistrate Judge Amos Mazzant to the Eastern District, and U.S. Attorney Robert Pitman to the Western District, based on the recommendations of Texas Senators John Cornyn and Ted Cruz. On Tuesday, Cornyn and Cruz, both members of the Judiciary Committee, attended the hearing and affirmed their support for the three nominees. Cruz lauded the nominees’ “impressive professional credentials and long careers demonstrating the fidelity to law that we expect from our federal judges.” Both Senators also praised the bipartisan Federal Judicial Evaluation Committee, made up of lawyers and judges throughout Texas, that initially screened candidates and named finalists for the Senators to review.
The people of Texas need all three nominees confirmed swiftly—each will fill a seat the Administrative Office of the U.S. Courts has designated a “judicial emergency,” a designation for courts that simply do not have enough judges to handle their existing caseloads. In particular, Robert Pitman would fill a seat in the Western District that has been vacant for nearly six years and is now the second-oldest vacancy in the entire federal judiciary. Pitman’s nomination also has historical significance for the diversity of our courts: Cruz and Cornyn are the first pair of Republican Senators to recommend an openly gay judicial nominee. Once confirmed, Pitman will be the first openly gay federal judge to serve in Texas.
Tuesday’s hearing marks progress for the federal courts in Texas, but there remains much work to be done. There are still eight current vacancies in Texas that do not yet have a nominee, including two on the Fifth Circuit Court of Appeals. Five of these vacancies are “judicial emergencies.” Those five represent 42 percent of the entire nation’s judicial emergencies without a nominee. In addition, four more Texas district court judges have announced their intention to retire or take senior status, and their seats will become vacant early next year. As this list of Texas vacancies grows longer, and longstanding vacancies remain unfilled, everyday Texans find it harder to gain access to the courts and the administration of justice suffers.
By Isaiah Castilla
Counsel, Bolder Advocacy
In a March 27 letter to the IRS, Alliance for Justice called on the Service to issue an immediate clarification about the treatment of activities to influence executive and judicial appointments and nominations made in the recent Notice of Proposed Rulemaking (“NPRM”): Guidance for Tax-Exempt Social Welfare Organizations on Candidate-Related Political Activities.
The NPRM proposes to include executive and judicial appointees and nominees within the definition of “candidate.” By defining executive and judicial nominations as candidates, 501(c)(4) organizations would have to treat their efforts to influence those nominations as “political” and count that work as partisan political activity.
We vehemently oppose this proposal, as we indicated in thecomments we submitted to the IRS on February 27. Our letter, however, calls on the IRS to retract its justification for this erroneous position on executive and judicial branch nominees. The Service’s purported rationale was that this definition would have very little impact on organizations because efforts to influence executive and judicial branch nominees are already included as exempt function (or political) activity. There’s one problem – that’s untrue.
The truth is that in 1988, the IRS announced that it was seeking comments on whether activities to influence judicial nominations should be included in the definition of exempt function activity under IRC § 527 and that any future decision on this question would be implemented prospectively only (see Ann. 88-114, 1988-37 I.R.B. 26). To date, the IRS has never announced a resolution of this question.
We ask the IRS to retract its erroneous statement immediately. Otherwise, 501(c)(3)s and other tax-exempt organizations will be misled into believing they are currently subject to tax on their expenditures for attempts to influence judicial and executive branch nominations.
We’re anxiously awaiting the Service’s response. Click here to read AFJ’s letter.
More about nonprofit advocacy at www.bolderadvocacy.org
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.
By Alicia Bannon
Counsel for the Brennan Center’s Democracy Program
Thurgood Marshall, Alan Greenspan, and Dwight Eisenhower aren’t often listed together in the same sentence. But all three, along with thousands of other judicial and executive officers throughout our nation’s history, received presidential appointments that would be illegal under a narrow reading of the Constitution’s “Recess Appointments Clause” currently being considered by the Supreme Court.
The case, National Labor Relations Board v. Noel Canning, which is being argued today, has the potential to profoundly alter the balance of power between the president and the Senate in the appointments process, with major implications for the functioning of our democracy.
As the Brennan Center explained in a recent analysis, Noel Canning concerns the scope of the president’s recess appointment power, by which the president can make temporary executive and judicial appointments during Senate recesses without Senate confirmation. These appointments expire either at the end of the Senate’s next session or when a nominee is confirmed. Noel Canning reviews a decision by the D.C. Circuit Court of Appeals that interpreted this recess appointment power narrowly.
The specific legal questions in Noel Canning are complex, and neither the text of the Recess Appointments Clause nor its “intent” is a model of clarity. In hearing a challenge to a decision by the National Labor Relations Board (NLRB), which relied upon recess appointments to maintain its quorum, the Supreme Court will consider three questions:
1.) Do recesses that take place during the Senate’s annual sessions qualify as a “recess” for purposes of the recess appointment power?
2.) Is the Senate in recess if it is holding “pro forma” sessions where it does no business? and
3.) Can vacancies that opened before a recess began be filled using recess appointments?
Answering no to any of these questions would dramatically narrow the recess appointment power, with the potential to substantially weaken the president’s ability to execute the law and keep our government working.
Our agencies and courts cannot function without people to keep them running. Presidents throughout our nation’s history have relied on recess appointments to keep the government functioning when the Senate was unable to provide its advice and consent on nominees, for reasons ranging from lengthy holidays to minority obstruction through the filibuster. While incomplete record-keeping makes it impossible to identify every appointment that would have been illegal under the narrow interpretation being considered by the Supreme Court, such appointments go back at least as far as James Monroe, and may date all the way back to George Washington and James Madison.
In recent years, recess appointments have played an important role in keeping the agencies functioning in the face of Senate obstruction of the confirmation process. According to the Congressional Research Service, nearly half of all cloture motions ever filed or reconsidered on nominations were made from 2009-2013.
The appointments at issue in this case are a good example. The NLRB has seen a long history of obstruction around nominations—by both Democrats and Republicans—in efforts to deny the agency the three-member quorum it needs to resolve disputes. If President Obama had not repeatedly exercised the recess appointment power to maintain an NLRB quorum, its operations would have been paralyzed for approximately two years during his presidency. In fact, without recess appointments, the NLRB would have lacked a quorum for 2,885 days since 1988– almost eight years. Instead, during these periods, the agency issued 4,240 decisions.
Of course, recent changes to the filibuster have changed the confirmation landscape and lessened the urgency around recess appointments, at least temporarily. In November, Senate Democrats changed the filibuster procedure to require only a majority vote to end debate regarding executive and judicial nominees (other than Supreme Court justices).
Yet recess appointments continue to be important. New obstruction tactics are already taking hold. Likewise, a future hostile Senate majority may one day play a similar role in refusing to put nominees to a vote in an effort to sideline the president’s capacity to execute the law. If the Supreme Court follows the lead of the D.C. Circuit and substantially narrows the recess appointment power, our democracy will lose an important tool for ensuring a functioning government.
Alicia serves as Counsel for the Brennan Center’s Democracy Program, where her work focuses on judicial selection and promoting fair and impartial courts.
AFJ releases a new report on the court that hears appeals in Texas, Louisiana and Mississippi
Last week’s decision by the Fifth Circuit Court of Appeals to reinstate Texas’ draconian abortion law can be described in many ways—shocking, appalling, disturbing, unjust, and a vital reminder of how much judges matter—but no one familiar with the Fifth Circuit should be surprised.
As Alliance for Justice explains in a new report profiling the court’s 15 judges.
Ten of its 15 active judges were appointed by Republican Presidents, and its decisions often reflect a concerted effort by Republican administrations to impose a conservative policy agenda through the courts.
That agenda shows itself in all sorts of ways, including decisions favoring powerful special interests at the expense of everyday Americans. Among the examples cited in the report:
After a group of Hurricane Katrina victims received a favorable ruling from a three-judge panel in their suit against polluter energy companies, the court decided to hear the case “en banc”—meaning that the panel decision would be vacated and the court’s full roster of judges would decide the case. But because ties to the energy industry forced so many judges to recuse themselves, there weren’t enough judges left to hear the appeal. The result was that the hurricane victims lost without ever getting their day in court. Their favorable panel decision had already been set aside, and the lost quorum meant that the trial court’s decision—which sided with the energy companies—was reinstated.
The court’s decisions have also eroded civil rights, marginalized criminal defendants, and demonstrated insensitivity and even outright hostility toward racial minorities and women.
As the report documents, last week’s abortion law decision was only the most recent example.
The Fifth Circuit judges
The Fifth Circuit Court of Appeals has appellate jurisdiction over the federal courts in Texas, Louisiana, and Mississippi. It often has the last word on questions of federal law, so it’s imperative that the court is staffed with fair-minded judges who uphold the rule of law and treat all litigants equally. Here are some examples, culled from the report, of what we are getting instead:
● A high school cheerleader is raped, allegedly by a member of the school basketball team. The school then forces her to cheer for the alleged rapist. She sues, arguing the school’s actions violated her First Amendment rights. In a decision written by Judge Edith Brown Clement, the Fifth Circuit not only dismisses the claim, but it orders the rape victim to pay legal fees for filing a “frivolous” suit.
● Judge Priscilla Owen, who wrote the opinion reinstating the Texas abortion restrictions law, has a history of anti-abortion activism. Consider what happened when Owen and Alberto Gonzalez—a man with such stellar conservative credentials that he would go on to serve as President George W. Bush’s attorney general—both were serving on the Texas Supreme Court: Owen and other dissenters tried to impose restrictions on minors seeking abortions that were even more severe than those permitted under state law. Their views prompted Gonzalez to accuse them of committing “an unconscionable act of judicial activism.”
Owen had far more sympathy for corporations like Enron. She wrote an opinion cutting Enron’s school taxes by $15 million—after accepting thousands of dollars in campaign contributions from Enron.
● In 2009, Judge E. Grady Jolly attended a conference on the so-called “criminalization of corporate conduct” sponsored by the American Petroleum Institute and the U.S. Chamber of Commerce. Three years later, he ruled in favor of two organizations suing to invalidate a decision by the Environmental Protection Agency. The organizations were the American Petroleum Institute and the U.S. Chamber of Commerce.
● Judge W. Eugene Davis and Judge Jerry Smith have attended seminars funded by the so-called Foundation for Research on Economics and Environment (FREE), an anti-regulation think tank funded by the oil industry. Only months after the Deepwater Horizon disaster, these judges ruled in favor of oil companies challenging the president’s partial moratorium on offshore drilling in the Gulf. (Judge Clement goes them one better—or one worse. She actually serves on the board of FREE—despite an opinion by the Judicial Conference’s Committee on Codes of Conduct that it is an ethics violation to do so.) Judge Smith also was one of the Fifth Circuit judges who rejected an ineffective assistance of counsel claim. He apparently felt it was no big deal that the lawyer in question slept through key parts of a capital murder trial.
● Perhaps the most notorious judge on this court is Edith Jones. She’s taken it upon herself to urge the Supreme Court to overturn Roe v. Wade and criticized the Supreme Court for “struggl[ing] with the particular facts … of death penalty cases.” But that’s just the tip of the iceberg. She is the subject of a formal complaint from ethics experts and civil rights organizations alleging, among other things, that she made overtly racist remarks during a speech on the death penalty. Full details are in this previous post to Justice Watch.
Of course not all the judges are like this. But fair-minded Fifth Circuit judges like James Dennis often must write in dissent, as Judge Dennis did when the majority wrote a decision declaring that undocumented immigrants don’t have fundamental constitutional rights because they are not “people.” And President Obama had to nominate Judge James Graves twice before winning confirmation; the first time the nomination was stalled by Senate Republicans.
AFJ President Nan Aron often says that “the left sees the courts as a path to justice; the right sees the courts as a path to power.”
Now ultraconservative judges in two circuits have issued decisions giving the right just what it wants – more power over women’s lives and women’s bodies.
Yesterday, a three-judge panel of the 5th Circuit Court of Appeals overturned a federal district court and reinstated one of the worst provisions of the appalling anti-abortion law in Texas – the provision requiring doctors to have admitting privileges at a hospital within 30 miles of a clinic where abortions are performed (which is medically unnecessary and designed to shut down clinics).
As a result, clinics across the state that perform abortion are already shutting down. Of the 36 clinics performing abortions in Texas, 13 will have to close their doors, forcing women to travel hundreds of miles, and adding to their personal pain and expense – if they can get to a clinic at all.
In blocking the requirement on Monday, Judge Lee Yeakel of United States District Court in Austin accepted the argument of the clinics, and many doctors and national medical associations, that requiring admitting privileges had no bearing on safety because in the rare event of an emergency, patients will be rushed to the nearest hospital and treated the same way regardless.
But just three days later, three judges, all appointed by George W. Bush, overturned Judge Yeakel’s decision.
Then, today, a divided three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled that two owners of a private, for-profit business could deny their employees insurance coverage for birth control because they claim it offended their religious beliefs. The decision was written by Janice Rogers Brown, whose deeply-disturbing extremist views are well-known. She once referred to the onset of the New Deal as the “triumph of our own socialist revolution.”
Both of these cases are likely to wind up at the Supreme Court.
These decisions are two more classic examples of the judicial overreach of the far right. Decisions like these illustrate the real reason Republicans have engaged in unprecedented obstruction of President Obama’s judicial nominees – particularly his nominees for the D.C. Circuit.
● It is because of these kinds of assaults on justice that AFJ is leading the fight to fill every vacancy on the D.C. Circuit. [link to DC Circuit landing page]
● It’s because of these kinds of assaults on justice that AFJ produced its 15-minute documentary Roe at Risk.
● And it is because of these kinds of decisions that Nan Aron and AFJ Justice Programs Director Michelle Schwartz will be in Texas next week, working closely with local advocates for reproductive justice and filling judicial vacancies.
We’re working to clear the obstacles in the path to justice.
By Nan Aron, President, Alliance for Justice
On Tuesday, I testified at a House Judiciary Committee hearing that posed the nonsensical question, “Are More Judges Always the Answer?”
This is a committee whose Republican members include Darrell Issa, Steve King, and Louie Gohmert, so it will come as no shock to anyone that a topic that sounds like a segment on a Fox News show was not designed to dispassionately explore the nuances of judicial nominations and the workloads of federal judges.
So what was this hearing really about?
It turns out it was actually about President Obama’s nomination of three highly qualified individuals to the U.S. Court of Appeals for the D.C. Circuit, the court right below the Supreme Court in importance. You might ask why the House of Representatives is conducting a hearing on a subject that is the constitutional purview of the Senate, but the future of the D.C. Circuit is so important that it’s getting the full right-wing, high-volume Sturm und Drang treatment, even in places it doesn’t belong.
Of course the real action is on the other side of the Hill where Republicans in the Senate are doing everything they can think of to prevent the president from filling the three seats out of 11 that are currently vacant on the court. The Republicans are threatening a triple filibuster of all the nominees–no matter how qualified they are–claiming absurdly that there just isn’t enough work for the full complement of 11 judges the law requires. They began carrying out their threat today.
A funny thing happened at a Senate Judiciary Committee hearing yesterday: Tenth Circuit Court of Appeals nominee Carolyn McHugh appeared for her confirmation hearing, and no Republican Senator complained that the Tenth Circuit’s caseload is too small to confirm another judge.
Judge Carolyn McHugh
It’s been a different story for President Obama’s three D.C. Circuit nominees. At each of their respective hearings, the Republicans sounded the same refrain: the D.C. Circuit doesn’t have enough cases to appoint new judges, new judges are too expensive, and the President’s attempt to fill preexisting, vacant seats is mere “court packing” that should be opposed.
Suppose you are a United States Senator who must decide whether to support a nominee for a judgeship. What are the most important criteria?
A. Knowledge of the law
C. Judicial temperament
E. If I vote for the guy, will it offend my extremist base?
Most of us would consider the first four. But if the senator in question were Marco Rubio, and if he were forced to answer honestly, he would have to admit to E.
Sen. Rubio made that clear when, having previously supported the nomination of William Thomas to serve as a judge on the United States District Court for the Southern District of Florida, he first delayed for months giving the Senate Judiciary Committee his okay to move forward with the nomination then changed his mind entirely. By committee tradition, both home state senators must sign off on a judicial nomination for it to proceed. Sen. Rubio’s reversal effectively vetoes the nomination.
As a result, this judgeship, already vacant for more than 18 months, will remain vacant still longer, causing unconscionable delays for residents of Miami-Dade, Broward, Palm Beach and several other South Florida counties seeking justice in federal court.
Thomas now serves as a state court judge in Florida. Between the time Rubio said he would support Thomas and the time he changed his mind, Thomas did not change. He’s the same William Thomas who won the support of groups like the Dade County Police Benevolent Association, the Broward County Police Benevolent Association, and the League of Prosecutors, a Miami-based group made up of current and former prosecutors.
The only thing that’s changed is Rubio’s need to shore up his far-right base after flirting with compromise on immigration reform. Apparently, Rubio didn’t want to further alienate his extremist allies by supporting a highly-qualified judge who would also happen to be the first openly gay black male judge to serve on the federal bench.
As Yolanda Strader, president of Miami’s largest association for black lawyers told The New York Times:
As much as I would like to think that politics has nothing to do with this, it looks as if it does. It would be unfair to prevent a well-qualified judicial nominee from proceeding with the nomination process because he is an openly gay black male.
But given Rubio’s feeble and illogical excuses for his reversal, that appears to be exactly what’s happened.
Rubio cites two rulings by Thomas.
In the first, Thomas had to throw out a confession in a horrific rape and murder case because two of the five defendants either had not been read their Miranda rights, or did not understand them. Nonetheless, all five were convicted or pled guilty – and Judge Thomas sentenced one of the killers to death. Never mind that the ruling at issue was made more than six years ago—and for that reason alone could not logically serve as Rubio’s justification for changing his mind about Judge Thomas in the last several months—Judge Thomas’s decision was a product of exactly what conservatives say they want judges to do: strictly apply the law, instead of bending it to reach a desired outcome.
In the second case, Rubio felt that Thomas had not imposed a sufficiently harsh sentence on a driver who killed a cyclist.
But Rubio has the complex facts of the case wrong. In January of this year, the prosecutor who handled the case set the record straight in a letter to Rubio, saying that Judge Thomas made his sentencing determination—which was within the guidelines provided by law—using “careful judgment.” In July, the Administrative Judge for the court where Thomas serves did the same. Rubio ignored both letters.
To make matters worse, these are exactly the sorts of questions that are best hashed out in the sunlight of a public committee hearing. But without Rubio’s consent, Judge Thomas will never have that opportunity.
The big losers in all this are the people of South Florida. When federal courts don’t have enough judges, delays can become unbearable. Medical bills caused by injuries due to negligence may pile up while families wait for justice; memories may fade; witnesses may die.
Judge Thomas would have filled a seat that has been vacant for more than a year and a half. The Administrative Office of the United States Courts says the situation is so bad that the vacancy is a “judicial emergency.”
By his actions on the Thomas nomination, Rubio has given new meaning to the term “obstruction of justice.”
In its letter to Rubio strongly endorsing Thomas, the League of Prosecutors wrote:
If – as we believe appropriate – the criteria on which you base your decision to confirm district court judges are judicial ability, work ethic, intelligence, experience, and a willingness to adhere scrupulously to the dictates of the law, you should confirm Judge Thomas without hesitation and urge your colleagues to do the same.
Too bad those are not Marco Rubio’s criteria.
Hughes is first openly gay nominee confirmed
as a federal appellate judge
Alliance for Justice President Nan Aron issued the following statement today on the confirmation of Todd Hughes to serve as a judge of the United States Court of Appeals for the Federal Circuit:
Today’s vote to confirm Todd Hughes marks another milestone in the long journey toward justice and equality. Alliance for Justice long has fought for a federal judiciary that reflects the full diversity of America and a confirmation process that evaluates candidates based on their legal expertise, not how they look or who they love.
We applaud President Obama for nominating the first openly gay individual confirmed to serve on a federal appellate court. We will continue working with the President and the Senate to ensure our federal judges possess a breadth of personal and professional experience.
We share President Obama’s confidence that, in his words, Todd Hughes “will be [a] judicious and esteemed addition” to the Federal Circuit.
Alliance for Justice President Nan Aron issued the following statement in response to the vote by the Senate Judiciary Committee today on President Obama’s nomination of Nina Pillard to serve on the United States Court of Appeals for the District of Columbia Circuit:
We commend the majority of the Senate Judiciary Committee for supporting President Obama’s nomination of Nina Pillard for the D.C. Circuit Court of Appeals. We are disappointed, but not surprised, that all of the committee’s Republicans chose to put politics ahead of qualifications and opposed this outstanding nominee.
The American people have good reason to be fed up with Republican obstruction and delay. They demand and deserve courts that have enough judges to administer justice fairly and swiftly. Americans are entitled to a swift yes-or-no vote by the full Senate on Nina Pillard and President Obama’s other judicial nominees.
On June 4, 2013, President Obama nominated Georgetown Law Professor Nina Pillard to the United States Court of Appeals for the District of Columbia Circuit. Over the course of her law career, Professor Pillard has won historic Supreme Court victories, and served two tours as a high-level government lawyer at the Department of Justice. She has spent 15 years teaching at Georgetown Law, where she is co-director of Georgetown’s Supreme Court Institute. As the Senate Judiciary Committee prepares to vote on her nomination tomorrow, here are 10 things you might not know about Professor Pillard:
1.She helped open VMI to women. Professor Pillard wrote the briefs in United States v. Virginia, a case originally filed by the George H.W. Bush Administration. Professor Pillard’s arguments persuaded the Supreme Court to open the Virginia Military Institute to women, ending one of the last male-only admissions policies at a state college. Read an op-ed columns about Professor Pillard from a VMI alumna and from the superintendent of VMI when women first were admitted.
2.She protected the Family and Medical Leave Act. Professor Pillard argued Nevada Department of Human Resources v. Hibbs before the Supreme Court, alongside Department of Justice officials from the George W. Bush administration. Their defense of the Family and Medical Leave Act successfully vindicated a state employee’s right to take unpaid leave to care for his ill wife. Chief Justice Rehnquist wrote the majority opinion.
3.She has bipartisan support—including from top Republican former Justice Department officials. Professor Pillard’s impressive record, integrity, and impartiality have earned her the support of top Department of Justice officials in previous Republican administrations. President George W. Bush’s Assistant Attorney General Viet Dinh and former FBI Director William Sessions both wrote personal letters to the Senate Judiciary Committee endorsing Professor Pillard for the DC Circuit.
4.She has argued or briefed dozens of cases before the Supreme Court. Over the course of her career, Professor Pillard has litigated at all levels and throughout the country, from trial court to the Supreme Court.
5.If confirmed to the D.C. Circuit, Nina Pillard would be only the sixth woman to serve on that court in its 120-year history.
6.She assisted the American Bar Association in concluding that Samuel Alito was “well qualified” for the U.S. Supreme Court. Because of Professor Pillard’s unbiased approach to the law, she was asked to chair an ABAcommittee that reviewed Judge Samuel Alito’s writings, in the context of his nomination to the Supreme Court. Armed with the review by Professor Pillard’s committee, the Standing Committee unanimously gave Judge Alito its highest rating of “Well Qualified.”
7.Professor Pillard has substantial expertise in matters affecting law enforcement. Professor Pillard served two tours at the U.S. Department of Justice and has repeatedly defended and advised law enforcement officials. Her expertise has earned her the endorsement of the International Union of Police Associations and more than two dozen top attorneys in law enforcement and national security.
8.She’s a beloved professor. Over the last 15 years, Nina Pillard has distinguished herself as a professor at Georgetown University Law Center. One of her favorite classes to teach is Civil Procedure, which covers the crucial role that fair process plays in the American legal system.
9.Professor Pillard serves as a Co-Director of Georgetown University’s Supreme Court Institute. Here, she prepares lawyers for argument on a pro bono, first-come basis, without regard to which side they represent. Over the past term, the Institute prepared lawyers on one or both sides of every case heard by the Supreme Court.
10)Professor Pillard has devoted considerable time and energy to mentoring others throughout her career. During her years at Georgetown, she has mentored countless law students. As a college student, moreover, she mentored low-income girls through a Big Sister program. In addition, she served on the Board of Friends of the Double Discovery Center at Columbia College, which works with low-income and first-generation-college youth to ensure academic skills building, high school graduation, college entrance and completion, and responsible adulthood.
Federal Judgeships Act seeks relief for overburdened courts but Republicans keep record of obstruction intact, throwing up roadblocks to reform
At a hearing of the Senate Judiciary Subcommittee on Bankruptcy and the Courts on the Federal Judgeship Act of 2013 today, Senator Jeff Sessions (R-AL) made clear that Senate Republicans intend not only to both have their cake and eat it, but to then throw the cake at Democrats who are working to give federal courts the resources necessary to administer justice in a fair and efficient way for all Americans.
The Federal Judgeships Act, introduced by Senators Chris Coons (D-DE) and Patrick Leahy (D-VT), would create 91 new federal judgeships to address a burgeoning caseload that’s been growing since the last time Congress passed a comprehensive judges bill in 1990. The bill is based on the specific requests of the nonpartisan Judicial Conference, which is headed by Chief Justice John Roberts.
Alliance for Justice supports this bill because, as Senator Coons said today, “Overburdened judges, almost by definition, cannot provide the level of time, and care, and reflection they would like to for each case before them.”
In opposing the legislation, Senator Sessions remarked that the President has not named nominees for 50 of the 92 current vacancies on thefederal bench and suggested that the need for more judges would be solved if the White House simply filled existing seats. But here’s what Sessions left out: Of the 50 current vacancies without nominees, 25 are in states with two Republican Senators and 16 are in states with one Republican Senator, while states with two Democratic Senators only have 8. That means that a whopping 82% of current judicial vacancies without a nominee are in states with at least one Republican Senator.
This disparity is no coincidence.As AFJ has consistently noted, President Obama knows that nominees who lack support from both of their home state senators have no chance of moving through the Senate Judiciary Committee, and therefore any pre- or post-nomination objection or opposition from a home Senator renders a nomination futile. The Republicans have relied on this sort of backdoor obstructionism—using home state opposition to well-qualified and eminently capable candidates—to block the President’s attempt to fill critical vacancies, and are now cynically turning around and using these vacancies to oppose timely and important legislation.
This painfully obvious attempt to have it both ways cannot go unnoticed, and Republican Senators should be held accountable for unduly limiting access to the federal justice system.
By Michelle D. Schwartz
Director of Justice Programs
If there’s a new Era of Good Feelings prevailing in the Senate with respect to President Obama’s nominees to key posts, apparently the Republican members of the Senate Judiciary Committee didn’t get the memo.
This morning, they voted in lockstep against sending Patricia Millett—one of the president’s three mainstream, supremely qualified nominees to the D.C. Circuit Court of Appeals—to the Senate floor. In doing so, they went out of their way to be clear that their beef was not with the nominee herself, but with allowing the D.C. Circuit to function with a full complement of judges. In fact, as we have written previously, the Republican members of the Senate Judiciary Committee, led by Ranking Member Chuck Grassley, R-Iowa, began their absurd campaign against filling the three vacancies on our nation’s second most important court even before they knew who the nominees were.
In other words, “it’s not you; it’s the institution.”
To paraphrase Troy McClure from The Simpsons, you may remember this argument from such nomination fights as the National Labor Relations Board, the Consumer Financial Protection Bureau, the Environmental Protection Agency, and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), to name a few.
We hope that, as with those nominees, Senate Republicans come to their senses and allow yes-or-no votes on all three nominees to the D.C. Circuit. We have good company in that hope. Just yesterday, we were proud to be one of 97 organizations nationwide to send a letter calling on all senators to allow yes-or-no confirmation votes for Patricia Millett, Cornelia Pillard, and Judge Robert Wilkins. As we wrote in that letter:
Whether you support or oppose Millett, Pillard, and Wilkins, please allow the American people to see you and your Senate colleagues express that position in a yes-or-no confirmation vote for all three nominees.
Otherwise, the Era of Good Feelings will be a very short one indeed.
Alliance for Justice President Nan Aron released the following statement today in response to the confirmation of President Obama’s nominees to the National Labor Relations Board:
With these votes the Senate restores the National Labor Relations Board to full functioning. That will ensure fundamental protections not just for union members but for all American workers.
For 75 years, the National Labor Relations Act has been the rulebook for relations between businesses and their workers. But a rulebook is useless without an umpire. The members of the NLRB are the umpires. Soon they’ll be back on the field.
But that is not enough. Obstruction of judicial nominees is every bit as debilitating as obstruction of executive branch nominees. The same willingness to allow, at long last, yes-or-no votes on the NLRB nominees must extend to the nominees for the D.C. Circuit and other judgeships.
Alliance for Justice President Nan Aron issued the following statement today concerning President Obama’s nominations of Patricia Ann Millett, Cornelia Pillard and Robert Wilkins to serve on the United States Court of Appeals for the District of Columbia Circuit:
We applaud President Obama for nominating supremely qualified individuals to the three vacancies on the D.C. Circuit, the nation’s second most important court, and we commend him for sending a bold, public signal that these nominees are a top priority. These choices also reflect the president’s outstanding record for increasing diversity on the federal bench. We were pleased to stand with the President at today’s announcement, and we are pleased to stand with him in his effort to fill these seats. Now Senators must fulfill their constitutional duty by swiftly reviewing and voting yes or no on these nominations.
There is no excuse for delay. The D.C. Circuit decides cases that affect every aspect of all Americans’ lives, from the air we breathe to workplace safety to the health of our families to the ability to regulate financial institutions. This court needs to be at full strength in order to manage its critically important caseload, the unique nature of which may well affect the ability of the government to serve the public interest.
With stakes this high, we are prepared to join with President Obama as he champions the effort to ensure that the Senate fulfills its constitutional obligation to fill the circuit’s ninth, 10th and 11th seats without delay — just as it did during President George W. Bush’s administration. There has never been a more important time for all who care about the future of our country to mobilize against the destructive tactics of obstruction that have wounded our courts and damaged public confidence in our democratic institutions.
●Read Nan Aron’s column about the D.C. Circuit in The Huffington Post.
●Watch Nan Aron discuss the D.C. Circuit with Melissa Harris Perry on MSNBC
●Read more about the D.C. Circuit.
Republicans largely to blame for the very vacancies he cites
The New York Times reports that President Obama soon will nominate three people to fill the remaining vacancies on the United States Court of Appeals for the District of Columbia Circuit. Republicans know full well they can’t credibly argue that all three nominees are unqualified – so they’ve tried all sorts of diversions.
The latest comes from National Review commentator Ed Whelan. A column today includes a series of misleading statements about the President’s record on filling vacancies where the caseload backlog is most severe. Such vacancies have been designated “judicial emergencies” by the Administrative Office of the U.S. Courts.
“If the White House were seriously interested in relieving the judicial workload, it would presumably be giving high priority to the “judicial emergencies” identified by the Administrative Office of the U.S. Courts. . . . [I]t’s striking that of those 32 judicial emergencies, the White House has made nominations to only eight of those seats, and four of those eight nominations were made just this month. Of the remaining 24 judicial emergencies for which the White House has made no nomination, vacancies have existed for periods as long as: 3,071 days, 2,706 days, 1,641 days, 1,590 days, 1,570 days, 1,238 days, 1,225 days, 939 days, 877 days, 728 days, 688 days, 606 days, 604 days”
What Mr. Whelan failed to mention is that of the 24 vacancies without nominees, 18 are in states where Republican senators have delayed the process, often for years. Indeed, all but two of the vacancies for which he lists the number of days pending are in states with at least one Republican senator. If Mr. Whelan is really interested in, as he puts it, “relieving the judicial workload,” he should focus his ire on his Republican Senate allies from Texas, Wisconsin, Arizona, Georgia, and Kansas, who have done their best to keep seats unfilled, even when it harms their constituents’ access to justice.
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For further reference, here’s a list of those 24 judicial emergency seats without nominees, culled from our regularly-updated Judicial Vacancies Without Nominees factsheet. (States with two Republican senators are highlighted in red, states with split delegations are highlighted in purple, states with two Democratic senators are highlighted in blue, and vacancies that either lack Senators or where other conflicts are causing delay are highlighted in green.)
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Sen. Charles Grassley (R-Iowa) deserves “an ‘A’ for creativity but an ‘F’ for content” for his scheme to obstruct future nominees to the nation’s second most important court, Alliance for Justice President Nan Aron said Thursday.
Aron was referring to Grassley’s plan to eliminate three of the four vacant judgeships on the United States Circuit Court of Appeals for the District of Columbia Circuit, a plan he raised again at a Senate Judiciary Committee meeting Thursday.
During that meeting, the committee voted in favor of president Obama’s nomination of Sri Srinivasan to fill one of four vacancies on the 11-judge court. “But don’t be fooled: Today’s vote by no means shows Republicans’ willingness to stop playing games with the president’s nominees. During the same meeting, Grassley announced what amounts to a ‘pre-emptive filibuster,’ declaring his intent to eliminate the other three vacancies on the D.C. Circuit, effectively blocking any nominees to those seats,” Aron said.
Grassley cited what he claimed is a light workload for the court, based solely on the number of cases handled by each judge. “That claim is as nonsensical as it is hypocritical,” Aron said.
“As the court’s former Chief Judge, Patricia Wald, has written, ‘The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives . . . . These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record – all of which culminates in lengthy, technically intricate legal opinions.’”
Aron also noted that “less than a week ago, at another meeting of the same committee, Sen. Grassley’s close Republican ally, Sen. Jeff Sessions said it was wrong to measure caseload by raw numbers without factoring in complexity.
“The hypocrisy is clear when one looks at Sen. Grassley’s own record. When the caseload on the court was lighter than it is now, Sen. Grassley supported President George W. Bush’s nominees to fill all eleven seats on the court.
“The current majority on the D.C. Circuit has used its power to issue decisions undermining protections for workers, consumers, and the environment that affect all Americans,” Aron said. “Sen. Grassley and his allies are using every trick in the book to try to keep it that way.”
“If the Republican obsession with obstruction persists,” Aron said, “then the Senate majority must reform Senate rules to allow the will of the majority of Americans to prevail.”
Republican obstruction of the president’s nominees on the Senate floor through use of (often silent) filibusters has been well-documented, but in the past two days the public has seen what those of us working on judicial nominees have known for far too long – the obstruction is often just as bad at the committee level.
Just one day after using an arcane procedural maneuver to delay a committee vote on the nomination of Tom Perez to serve as Secretary of Labor, Senate Republicans have used another underhanded ploy to delay a committee vote on the nomination of Gina McCarthy to lead the Environmental Protection Agency. They boycotted a meeting of the Senate Committee on Environment and Public Works to prevent the Committee from even holding a vote. Committee Republicans could hardly argue they lacked sufficient information to form an opinion on McCarthy – she answered more than 1,000 questions from committee members.
On one level this behavior is understandable. To Senate Republicans, one of the only things as bad as a Labor Secretary who will protect working people is an Environmental Protection Agency administrator who will protect the environment. But the brazen nature of these committee delay tactics is shocking nonetheless.
Unfortunately, in the context of judicial nominations, such committee delays have become commonplace – and start even earlier in the process. By committee tradition,* the Senate Judiciary Committee typically won’t hold a hearing on a judicial nominee unless both home-state senators agree to allow the nomination to move forward. Like any such tradition, it works only as long as it is not exploited. But that is exactly what Senate Republicans are doing now.
That means some judicial nominees are stuck in limbo waiting for Judiciary Committee hearings months or years after they were nominated. In many more cases, the White House – reluctant to impose that fate on nominees – is left waiting in vain for Republican home-state senators to help identify acceptable candidates.
And, coming full circle, hanging over all of this obstruction at the committee level (and sometimes before) is the knowledge that even if nominees survive those obstacles, they face the specter of the filibuster once they reach the floor. The events of the past two days make clear, once again, that the weak-kneed agreement on Senate rules reached in January cannot come close to constraining the Republicans’ willingness to turn rules and traditions into weapons of mass obstruction. The Senate needs to back to the drawing board and enact tough-minded rules reform now.
Read more about obstruction by Senate Republicans:
- In-depth report from The Huffington Post on how Republicans obstruct judicial nominees.
- Our overview of the need for Senate Rules Reform.
- The website of the rules reform coalition Fix The Senate Now.
*-Although this tradition has been in place to some degree for many years, not all Judiciary Committee chairmen have been as generous as the current one in waiting for both home-state senators to indicate assent before holding a hearing.
Alliance for Justice president Nan Aron issued the following statement today in response to the decision of the United States Court of Appeals for the District Of Columbia Circuit in National Association Of Manufacturers, et. al. v. National Labor Relations Board, et al.
This decision illustrates how, years after leaving office, Republican presidents are reaping rewards from loading the nation’s second most important court with extreme ideologues. That’s why Senate Republicans have been desperate to prevent President Obama from filling vacancies on the D.C Circuit
It is urgent to restore balance to the D.C. Circuit by filling its four vacancies with judges who will stand up for the rights of working Americans.
This decision once again reveals a court majority that seems determined to hobble the National Labor Relations Board, the very body charged with protecting workers against unfair labor practices. In order to prevent employers from having to inform their employees about their rights under federal law, the panel twisted that very law to create a new right for employers to remain silent.
José Antonio Franco González is 33 years old, but he doesn’t know that. He also can’t tell time or remember telephone numbers. Yet when threatened with deportation, he had to defend himself entirely on his own.
Jose Antonio Franco Gonzalez
Photo from ACLU of Southern California
After a psychiatrist said Franco had no understanding of the proceedings, a judge dismissed the case. But Franco remained trapped in detention – for a total of five years – because he had no lawyer to represent him.
U.S. immigration authorities have long maintained that, unlike criminal defendants, indigent immigrants have no right to a lawyer paid for by the government. Not even if they are severely mentally disabled. So Mr. Franco was trapped until an attorney for Public Counsel, a public interest law firm in Los Angeles, stumbled across the case and stepped in to represent Mr. Franco.
Mr. Franco became the lead plaintiff in a class-action suit brought by Public Counsel, the American Civil Liberties Union Immigrants’ Rights Project and other groups.
Last week, a federal district court judge said that such abuses of immigrants’ rights must end. Judge Dolly Gee ordered immigration courts in three states to provide lawyers for indigent immigrants with mental disabilities who are facing deportation, and to give them bail hearings after six months of detention. The Justice Department is voluntarily extending the first part of the ruling nationwide.
The immigration bill now before the Senate would extend these rights to unaccompanied children as well. (Yes, right now, indigent children must defend themselves in immigration court.)
Judge Dolly Gee
Judge Gee almost didn’t make it onto the bench. President Clinton nominated her in 1999, but the Senate Judiciary Committee, then controlled by Republicans, refused to give her a hearing before Clinton’s term ended. President Obama nominated her again in 2009, and Dolly Gee became the first Chinese-American woman to be named a federal district court judge. Far from being a controversial nominee, Judge Gee was confirmed by unanimous consent in the Senate.
Her decision last week is one more illustration of why it’s so important to find the right judge for every federal court vacancy and fight Republican stalling tactics. The decision also illustrates something else: the need to fight ongoing efforts to curb the rights of Americans to band together as a class to stand up for their rights in court.
The American Constitution Society also has a post about this case.
As expected, the Obama Administration is asking the Supreme Court to review a ruling by the United States Court of Appeals for the District of Columbia Circuit that nearly eliminates the ability of a president to make “recess appointments” to federal agencies.
With Senate Republicans abusing the filibuster at an unprecedented rate, a recess appointment sometimes is the only way to fill vacancies. Indeed, Republicans have used the filibuster to cripple agencies they don’t like, such as the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau.
But when the president used his only alternative, recess appointments, the D.C. Circuit broke with decades of precedent and decisions from every other circuit to rule on the issue to invalidate those appointments. The decision being appealed now, discussed in detail in this previous post to Justice Watch, left the entire NLRB in limbo. That post also discusses the fact that this kind of extreme activism is nothing new for the conservatives on the D.C. Circuit – a court widely viewed as the nation’s second most powerful.
They get away with it because there are four vacancies on the eleven-member court, and among the remaining seven judges, conservatives hold a majority. Senate Republicans are going to extremes to try to keep it that way. First, they filibustered an excellent nominee, Caitlin Halligan, and now some Republicans are trying to eliminate three of the Court’s seats.
The Supreme Court should hear this challenge as soon as possible. President Obama needs to move full speed ahead and send the Senate enough nominees to fill every vacancy on the court. And Senate Democrats need to reform Senate rules, if that’s what it takes, to break the Republican addiction to obstruction.
Michelle Schwartz, Director of Justice Programs at Alliance For Justice, issued the following statement on the confirmation of Jane Kelly for the United States Court Of Appeals for the Eighth Circuit
We applaud the Senate both for confirming Jane Kelly and for doing it quickly. This is how the process should work – and we hope it is a sign of things to come.
Jane Kelly will bring much-needed gender and professional diversity to the Eighth Circuit. She is only the second woman to serve on the court in its 120-year history. As a career federal defender, she will bring both a commitment to public service and an important perspective on criminal justice to the Eighth Circuit.
Although President Obama has done an excellent job of improving diversity on the federal bench measured by race, gender and sexual orientation, there is room for improvement when it comes to the professional backgrounds of nominees. In this way, the nomination and confirmation of Jane Kelly is a promising step in the right direction.
The fight to ensure that there is a judge for every vacancy on the federal courts long has been at the heart of AFJ’s advocacy. That’s why we devote so much effort to tracking where the problems are worst – and putting pressure on Congress to stop the stalling.AFJ tracks every vacancy for every lifetime federal judgeship. We pay particular attention to where the delays are worst – vacancies that have been declared “judicial emergencies” by the Administrative Office of the U.S. Courts.
As we’ve noted in the two previous posts to this blog, right now more than one-third of the seats on the United States Court of Appeals for the District of Columbia Circuit – four out of 11 – are vacant. Last month, a Republican filibuster prevented a highly-qualified nominee, Caitlin Halligan, from filling one of those seats.
Earlier this week, the Senate Judiciary Committee held a hearing on another nominee, Sri Srinivasan. But even if Srinivasan ultimately is confirmed, that still leaves three vacancies on what has been called the second most important court in America.
In this excerpt from a speech in Brooklyn on March 10, Sen. Charles Schumer (D – N.Y.) talks about why this court is so important – and about the need for Senate rules reform if Republicans continue to use the filibuster to block D.C. Circuit nominees:
The previous post to this blog discusses misleading claims by Sen. Charles Grassley (R-Iowa). Now, he’s at it again. Here’s AFJ’s response:
Legislation sponsored by Sen. Charles Grassley (R-Iowa) to reduce the number of judges on what is widely viewed as the nation’s second most important federal court is a “court-packing scheme” to keep the court in the hands of staunch conservatives, according to Alliance for Justice.
Sen. Charles Grassley (R-Iowa)
Claims by Grassley and others that the court’s workload doesn’t justify the current number of judges are “false and hypocritical,” said AFJ President Nan Aron.
“There is more than one way to pack a court to suit one’s ideological preferences,” said Aron. “Now that they are facing increasing pressure to stop blocking President Obama’s nominees, Republicans have come up with a new plan: just get rid of the vacancies.”
At issue is the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit most closely oversees actions of federal regulatory agencies.
“The conservative majority on the D.C. Circuit has used its power to issue decisions undermining protections for workers, consumers, and the environment that affect all Americans,” Aron said. “This activism is possible only because there are four vacancies on the court.
“When the caseload on the court was lighter than it is now, Sen. Grassley supported President George W. Bush’s nominees to fill all eleven seats on the court. But now that President Obama has the opportunity to restore balance to the court, Sen. Grassley proposes to get rid of the vacancies by eliminating three of the 11 seats on the court.”
Aron noted that Grassley’s caseload calculations fail to take into account the extraordinary complexity of many cases heard by the D.C. Circuit.
For an explanation of the importance of the D.C. Circuit and examples of its majority’s political agenda, see our briefing paper on the D.C. Circuit.
Prior to the Senate’s long-overdue confirmation of Third Circuit nominee Patty Shwartz (who waited 550 days for a vote), Senator Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee, made misleading statements about confirmations of judicial nominees.
Specifically, he cherry-picked the time period for confirmations in an attempt to evade the fact that President Obama has had far fewer judges confirmed than President George W. Bush at a comparable point in his presidency. He said:
“Today the Senate will consider the 10th judicial nomination this year. . . . At this point in 2005, and that was the beginning of President Bush’s second term, comparable for what we’re talking about for President Obama, the Senate had confirmed zero judicial nominees. Let me repeat, at this point in 2005, the Senate had confirmed not 10 , not 4, not even 1 judicial nominee, so that comes out to be zero.”
Minority Leader McConnell
Following the vote, Minority Leader McConnell (R-KY) repeated the statement almost verbatim:
“We just today confirmed the 10th judicial nomination of President Obama’s second term. Today. The 10th judicial nomination of President Obama’s second term. At this point in President Bush’s second term, he got zero judges. None.”
Ten confirmations compared with zero confirmations sounds bad. But 202 confirmations compared with 181 confirmations sounds even worse—and that’s the actual number of Bush and Obama confirmations at a comparable point in their presidencies. That comes out to 21 fewer confirmations for Obama.
Grassley and McConnell’s larger point about fairness would be even stronger if the Senate had confirmed 96% of President Obama’s district court nominees—the percentage of President Bush’s district court nominees who had been confirmed at a comparable point. Instead, the Senate’s confirmed only 85% of President Obama’s nominees. Had Grassley, McConnell, and their colleagues allowed Obama to match Bush’s record on this front, the Senate would have confirmed another 19 judges, making the two presidents’ overall confirmation numbers almost exactly even.
As it happens, there are exactly 19 district court nominees pending in the Senate right now. Unfortunately, Republicans have delayed the 13 nominees on the Senate floor, who have been waiting for over a month, and 6 nominees who are pending in committee. Given the Senators’ evident concern with fairness, you would think that they would at least allow immediate votes for the 13 nominees pending on the floor, all but one of whom were reported out of the Judiciary Committee unanimously. You would think.
Alliance for Justice President Nan Aron issued the following statement in response to the vote today by the Senate to confirm Judge Patty Shwartz for the United States Court of Appeals for the Third Circuit.
The response of Alliance for Justice can be boiled down to three words: “It’s about time.”
Patty Schwartz has been an outstanding magistrate judge; she is held in the highest esteem by the New Jersey bar. She never should have had to wait more than 500 days for this vote. More important, those seeking justice from the Third Circuit never should have had to wait more than 500 days for a full complement of judges.
What happened today must become the rule, not the exception. From now on, all highly-qualified nominees need to be given prompt up-or-down votes by the full Senate.
UPDATE: AFJ President Nan Aron discusses the filibuster of Caitlin Halligan on the March 9 edition of MSNBC’s Up With Chris Hayes:In the previous post to this blog, we said that today’s cloture vote on the nomination of Caitlin Halligan for the U.S. Court of Appeals for the D.C. Circuit would tell us if Senate rules reform is for real.A short time ago, we got the answer. Here is AFJ President Nan Aron’s statement concerning the defeat of the cloture motion:
Caitlin HalliganEarlier this week, we urged Republican senators finally to put partisanship and obstruction aside and vote for cloture on the nomination of Caitlin Halligan to serve on the D.C. Circuit Court of Appeals.But it appears that urging Republican senators to rise above partisanship is like urging three-pack-a-day smokers to “just say no” to tobacco.Today, Republican Senators proved themselves to be addicted to obstruction, and utterly uninterested in putting the needs of the American people ahead of partisan posturing.As a result, for the second time in two years, Americans have been denied the services of a highly qualified nominee to serve on what is widely considered the nation’s second most important court.There is no justification for this level of opposition. Halligan’s nomination has strong bipartisan support, including endorsements from the National District Attorneys Association, the New York State Sheriff’s Association and two former assistants to Solicitors General under Republican administrations. Her credentials are impeccable and she was rated “well qualified” by the American Bar Association.The vote today also makes clear that the recent agreement to ‘reform’ Senate rules really was no agreement at all, but rather a blank check for continued obstruction. We believe the Senate majority needs to reconsider the terms of this agreement, and revisit serious rules reform.One could argue that Caitlin Halligan was the victim of partisan obstruction, but it’s more than that: the American people are the victims. Not only is a well-qualified nominee once again in limbo, the D.C. Circuit will continue to limp along with four of its 11 seats vacant.
Curt LeveyIn a front page story in the Washington Post today, Alliance for Justice President Nan Aron, among others, discusses the progress made toward a more diverse judiciary under President Obama. The story also included Coalition for Justice President Curt Levey’s shameful insinuation that the Administration might have “a lower threshold of qualifications for minorities.” Not only does Levey’s sentiment mirror Supreme Court Justice Antonin Scalia’s notorious “racial entitlement” language last week in the Voting Rights Act oral argument, it is outright false.Each and every federal court nominee put forward under President Obama – whether a white male or an African-American woman – has been rated qualified or well-qualified to serve as a federal judge by the American Bar Association. And rather than facing a “lower threshold,” a study by University of Rochester professor Maya Sen shows that the ABAsystematically holds women and minorities to a higher standard than white men. In other words, with all other objective qualifications equal, the ABA has given harsher ratings to women and minorities than to their otherwise identical white male counterparts.The facts clearly reflect that President Obama’s movement toward a judiciary that more closely resembles America has brought both diverse and exceptional nominees to a Senate which has delayed far too long in confirming them. Levey’s insulting accusation is an affront to the nominees, to the president, and to the American people, who have long since moved past these sorts of racial canards.Read more about President Obama’s federal court nominees and impact on the judiciary.
Victimized by credit reporting agencies, a desperate consumer turns to federal courtPerhaps you saw the segment of 60 Minutes this week about the nightmare that can follow when credit reporting agencies make mistakes – something they do with alarming frequency. (If you missed it, you can see it here):
The story made clear that the process for trying to get an error corrected doesn’t work. Ohio Attorney General Mike DeWine alleged that the companies routinely violate the Fair Credit Reporting Act.But what struck us was how one victim finally got justice – the one and only step she could take.Her name is Judy Thomas. But the bad credit of one Judith Kendall somehow wound up on her report. According to 60 Minutes:
it became a six-year battle with credit agencies, requiring box loads of correspondence to try and prove that she was Judy Thomas, not Judith Kendall, all to no avail. …
There are logs of daily phone calls to dispute centers, hundreds of letters to Experian, Equifax and TransUnion, even correspondence from Judith’s Kendall’s creditors in Utah, acknowledging that the debts on her credit report aren’t hers. …Thomas told 60 Minutes:
“I couldn’t refinance. I couldn’t take advantage of the interest rates. I couldn’t get a new– I couldn’t get a car. I couldn’t cosign for my children’s student loans. And I’d worked hard for my credit. I was– and these people were taking it away from me.”Then comes what is, in many ways the most important part of the story:
Finally Judy Thomas took the only recourse available to her. She sued Equifax and TransUnion in federal court. And after a year-long battle, the credit reporting agencies settled for an undisclosed sum and promised to clean up her file.Federal courts don’t just deal with abstract concepts, or with terror suspects or alleged crime bosses. Sometimes federal courts are the only recourse for everyday Americans like Judy Thomas. That, of course, is one reason why it’s so important that there is a judge for every vacancy on our federal courts. When there are too few judges, cases like this drag on for years – something that the Judy Thomas’ of the word cannot afford. Or they may never be brought at all.Of course there are other solutions – like enforcing the Fair Credit Reporting Act and beefing up penalties for credit reporting agencies that fail to correct their mistakes. But when all else fails, we need federal courts – fully staffed with federal judges.
In a previous post to this Blog, we noted the urgent need to fill vacancies on the U.S. Court of Appeals for the D.C. Circuit. Today, the Senate Judiciary Committee took a step in the right direction. Here is AFJ’s statement:Alliance for Justice applauds the Senate Judiciary Committee’s decision to advance 13 unquestionably qualified nominees to the Senate floor, including Caitlin Halligan’s nomination to the D.C. Circuit.
Caitlin Halligan“Ms. Halligan is the personification of the phrase ‘tough, but fair,’” said AFJ President Nan Aron. “She’s a prosecutor who works to enforce the law, but at the same time, to ensure that government power is exercised fairly, and with an understanding of the impact that power has on the lives of individuals, families, and communities.”Halligan has overseen numerous units within the Manhattan D.A.’s office, including the Conviction Integrity Program, which seeks to prevent wrongful convictions, and the Special Victims Bureau, which is composed of the Sex Crimes Unit, the Child Abuse Unit, the Domestic Violence Unit, and the Elder Abuse Unit. Her work has earned her the endorsement of the National District Attorneys Association, the National Center for Women and Policing, New York City Police Commissioner Ray Kelly, and current and former district attorneys including former Manhattan District Attorney Robert Morganthau.Ms. Halligan also has devoted much of her professional life to serving disadvantaged families. Throughout her career, particularly during her stint in private practice, she has engaged in pro bono work and community service projects that focus on families with the greatest needs, including by serving on the Board of Directors of the Center for Law and Economic Justice and by representing victims of Hurricanes Katrina and Rita who were threatened with losing their housing assistance.“Ms. Halligan’s nomination is historic,” Aron said. “If confirmed she will be only the sixth female judge in the 120-year history of the D.C. Circuit. We urge the full Senate to hold floor votes Ms. Halligan and the other nominees without delay.”Tomorrow on this Blog, a story that illustrates why all of these judgeships are so important.
The creation of yet another vacancy – the fourth – on what is widely-known as the nation’s second most important court is a stark reminder of the urgent need to fill vacancies on that court.
Judge David SentelleWith Judge David Sentelle taking senior status today, the D.C. Circuit now has more vacancies than any other circuit court of appeals. One of these seats has been vacant for more than seven years, another for more than four years. But the Senate has yet to confirm President Obama’s two nominees.In contrast, President George W. Bush named four judges to the D.C. Circuit, President Bill Clinton named three, President George H.W. Bush also named three and President Ronald Reagan named eight.“Only the U.S. Supreme Court itself has more of an impact on the lives of everyday Americans than the D.C. Circuit,” said AFJ President Nan Aron.Because this court is so important it has become a farm team for future Supreme Court justices. Four of the nine current justices – Roberts, Ginsburg, Scalia and Thomas – served on the D.C. Circuit.“Most D.C. Circuit cases will never be reviewed by the Supreme Court,” Aron said. “The D.C. Circuit often stands as the final arbiter of President Obama’s legislative legacy and decades of policy achievements long supported by the American people. We call upon the Senate to quickly confirm the pending nominees for this court, and we urge President Obama to nominate strong judges who understand the role of government in protecting everyday Americans.”
How many judgeships are vacant in your state – without even a nominee? Use AFJ’s new resource to find out:
In many parts of the country, vacant federal judgeships have languished without nominees for more than two years, according to a new resource from Alliance for Justice.
Much attention has been paid to what happens after someone is nominated to fill a vacancy – in particular the obstruction of nominees by Senate Republicans. But before a nomination ever reaches the Senate it goes through a complex, potentially lengthy process involving the White House and, with few exceptions, a state’s two United States Senators. At every step, a nomination can be delayed. In particular, this resource highlights the little-examined role that senators play in the pre-nomination process.
“This new report shines a spotlight on this often-neglected part of the process,” said AFJ President Nan Aron. “It illustrates the need for a renewed sense of urgency that should begin the moment a judgeship becomes vacant.”
Aron cited examples of unconscionable delay:
“Because of a dispute between senators from California and Idaho, a seat on the 9th Circuit has been vacant for more than eight years,” Aron said. “A seat on the 7th Circuit has been vacant for nearly four years. This kind of systemic failure has to end. The American people deserve better.”
When it comes to seats on federal district courts, there have been delays of two years or more in sending a nominee to the Senate in five states:
- Eastern District of North Carolina: 2,654 days
- Western District of Texas: 1,650 days
- District of Kansas: 1,163 days
- District of Arizona: 1,049 days
- District of Massachusetts: 889 days
“These data, including detailed maps, track the status of every federal court vacancy for which there is not yet a nominee, giving Americans the information they need to demand action,” Aron said.
The issue is arcane, but the consequences are huge. It’s a case study of how the Senate Republican minority’s abuse of the filibuster to block appointees, and the failure to fill vacancies on what is often described as the nation’s second highest court combined to produce potentially disastrous consequences.Hundreds of decisions by the National Labor Relations Board (NLRB) could be invalidated and the entire agency effectively shut down if a ruling by three Republican appointees to the U.S. Court of Appeals for the District of Columbia Circuit is upheld by the U.S. Supreme Court.The decision involves three appointees to the NLRB, a referee for disputes in the American workplace whose power extends beyond unionized workplaces. The five-member NLRB board can’t function without at least three vacancies filled. But for months Senate Republicans blocked three nominations by President Obama.Finally, the president resorted to what is known as a “recess appointment” – naming his nominees to the NLRB while the Senate was away for the holidays. But Republicans used a technicality to try to pretend the Senate still was in session: Every few days someone would stop by the near-empty Senate chamber, declare the Senate “in session” and then promptly declare the session over.This sham was good enough for three Republican-appointed D.C. Circuit judges. Ignoring longstanding practice and precedent, they ruled that the recess appointments were unconstitutional. Moreover, the ruling could invalidate all the decisions made by those three recess appointees over the last year.But wait, there’s more: Since one seat on the NLRB already is vacant that means, if the decision is upheld, the NLRB will have only one member. As so long as it doesn’t have 3 members, it can’t function at all.
Richard CordrayAnd still more: Richard Corday, who heads the Consumer Financial Protection Board, was appointed the same way. That happened after Senate Republicans first made clear they would never allow a vote on President Obama’s first choice, Elizabeth Warren (a decision they may now regret, given the job she ultimately got instead) and then stalled the nomination of Cordray. A separate case is challenging the Cordray appointment.None of this should come as any surprise. Last October, Pulitzer-prize winner Steven Pearlstein, then a columnist for The Washington Post, blasted the D.C. Circuit for its extreme right-wing activism.He wrote:…[D]ysfunctional government has become the strategic goal of the radical fringe that has taken over the Republican party. After all, a government that can’t accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.It didn’t have to be this way. As Pearlstein also pointed out:The prospect that some balance might be restored to the nation’s second-most powerful court has long since faded after Senate Republicans successfully filibustered every nominee put forward by President Obama for the three vacant seats on the D.C. Circuit.That was then. Soon there will be four vacant seats.Here’s why that matters: The 11-member D.C. Circuit currently has eight active members—five Republican appointees and three Democratic appointees—and, as noted above, three vacancies (the fourth vacancy will occur on February 12th). If the president had been able to nominate and confirm three people to fill the vacancies, the Court would have had a Democratic majority. That means either the panel decision could have been different or the entire eleven-member court may have been more likely to review the panel’s decision – with a six-to-five majority appointed by Democratic presidents. But since that didn’t happen, Pearlstein wrote, there was only one other alternative:The only hope now is that Chief Judge David Sentelle and some of the court’s more intellectually honest conservatives will move to rein in the judicial radicals before they turn the courts into just another dysfunctional branch of a dysfunctional government.Guess who wrote the decision in the NLRB case: David Sentelle.
We’ve written often about the failure of the United States Senate to confirm judges. But that failure is part of a wider failure – the failure of the Senate itself, brought on by the unprecedented misuse of arcane rules and procedures by the Republican minority.Abuse of the filibuster is prolonging the crisis in our federal courts, giving new meaning to the term “obstruction of justice.”It’s not only judicial nominations that are at stake. The filibuster has been abused to derail vital legislation, supported by a majority of the American people, and a majority of U.S. Senators, paralyzing progress on jobs, clean energy, workers’ rights, and immigration.To an extent unprecedented in American history, 60 votes has become the needed threshold for nearly every order of Senate business. Under the current broken system, senators do not even have to stand up and talk to block a bill. We believe they should be accountable for their actions.Senators can fix this problem. Call your senators at 1-888-717-0911 and ask them to reform the rules. Tell your Senators to support reforms that would:● Reduce the time for debate on nominations.● Require that if Senators want to filibuster, they have to do it the old-fashioned way – stand up and talk. Now a Senator can derail a bill merely by saying he or she intends to filibuster.● Necessitate 41 votes to keep a filibuster going – instead of requiring the majority to muster 60 votes to stop it.● Allow only one filibuster per bill – now even the decision to discuss a bill at all, called a motion to proceed, can be filibustered.When the next Congress takes office in January, the Senate will have one opportunity to reform the rules with a simple majority vote. We are already gaining extraordinary momentum and are confident with the outcome this time around. But we can’t do it without you!We need you to join us in a national day of action to support Senate rules reform. Call 1-888-717-0911 today and ask your senators to support reforms that will ensure that they can debate and vote on the critical issues facing our country.
Lisa McElroy, Associate Professor of Law at Philadelphia’s Drexel University Earle Mack School of Law, wrote this in a column for The Huffington Post:
[T]he Supreme Court expert in me is talking to the mother in me. And the Supreme Court expert in me knows that the only way to even think about stopping the carnage that the mother in me hates is to appoint Justices to the bench who believe that the Court’s current interpretation of the Second Amendment is wrong. Even one new Justice who believed that guns were for militias, not individuals, could vote to change the law, perhaps for decades, perhaps for the entire rest of my children’s lifetimes. And my worries about putting my children on the school bus would be much more about whether the bus would crash or some mean kid would bully them than about whether they’d come home in a body bag. And my children would only have to worry about whether my grandchildren would be able to transport themselves home safely at the end of the day instead of whether those grandchildren would fall to the floor in some public school classroom, full of bullet holes.
Robert KuttnerGot time for a good read this weekend? Then check out the current issue of The American Prospect. Robert Kuttner has a superb article about the entire judicial selection process, the errors made by the Obama Administration during the president’s first term, and what needs to be done now to get the process back on track.The story is a great primer on exactly how the judicial selection process works, an insightful analysis of why so much ground was lost during the president’s first term, and an important call to action. As AFJ President Nan Aron says in the story:
The administration needs an all-hands-on-deck approach this term, including a more active role by the Justice Department, a task force in the White House dedicated to finding and confirming nominees for every vacancy, and, most importantly, a more assertive personal role for the President himself.
Judges Needed for Federal Courts
There has been a severe breakdown in the process for appointing federal judges. At the start of the Reagan years, it took, on average, a month for candidates for appellate and trial courts to go from nomination to confirmation. In the first Obama term, it has taken, on average, more than seven months.Seventy-seven judgeships, 9 percent of the federal bench (not counting the Supreme Court), are vacant; 19 more seats are expected to open up soon. The lack of judges is more acute if one considers the growing caseload. The Judicial Conference, the courts’ policy-making body, has recommended expanding the bench by 88 additional judgeships.President Obama must make fully staffing the federal courts an important part of his second-term agenda — starting with the immediate Senate confirmation of the 18 nominees approved by the Senate Judiciary Committee.A significant reason for the slowdown has been the partisan opposition of Republicans to appeals court and even to trial court nominations, even though almost none of the nominees have backgrounds that raise ideological issues. The Republicans have time and again used the filibuster, the threat of filibuster, holds on nominations and other tactics to block confirmations.The Democratic majority, led by Senator Harry Reid, can speed up the process by limiting use of the filibuster. He can do so by pushing for a simple majority vote at the start of the January session to alter Senate rules so that every judicial and executive-branch nominee is assured an up-or-down vote within 90 days. Without that change, many judicial nominations will founder.
The full editorial is available here.
Graphic courtesy Fix The Senate Now
As we’ve noted before on this Blog, the failure of the United States Senate to confirm judges is part of a wider failure – the failure of the Senate itself, brought on by the unprecedented misuse of arcane rules and procedures by the Republican minority.
That’s why AFJ is a leader of a coalition called Fix The Senate Now. And that’s why today we debut a new resource page on the urgent need for Senate rules reform. The page sums up what’s wrong, and links to a set of crucial proposed reforms.
AFJ released this statement on a spectacle that was absurd even by U.S. Senate standards:AFJ: McCONNELL “SELF-FILIBUSTER” ILLUSTRATES HOW GOPTURNS IT INTO “WEAPON OF MASS OBSTRUCTION”WASHINGTON, D.C., Dec. 7: The spectacle of the Minority Leader of the United States Senate filibustering his own bill perfectly illustrates the extent to which the filibuster has been abused for purely partisan purposes, according to the Alliance for Justice.Yesterday, Sen. Mitch McConnell (R-Ky.) introduced a bill to allow the President to raise the federal debt ceiling on his own authority. The idea was to show that Democrats didn’t have the votes to pass such a measure. But when it turned out the Democrats did have the votes, McConnell was in a bind. His only way out: filibuster his own bill.“If we didn’t know better we’d think Sen. McConnell was moonlighting as a writer for The Daily Show or The Colbert Report,” said Nan Aron, President of the Alliance for Justice. “But Sen. McConnell’s theater-of-the-absurd actually illustrates an extremely serious problem: the paralysis in the Senate caused by Republican abuse of the filibuster.“The filibuster was intended to be used in extreme circumstances, where fundamental principles were at stake,” said Aron. “But Senate Republicans have turned it into a weapon of mass obstruction to bring the business of the Senate to a halt.“Nowhere is this more apparent than in our federal courts. As we document in our recent report, Senate Republicans repeatedly have abused the filibuster to block votes on nominees for federal judgeships – including noncontroversial nominees with broad bipartisan support. That’s led to unconscionable delays and severe hardship for hundreds of thousands of Americans, forced to wait months, sometimes years to fight for their rights in court.
“That’s why it’s time to ring down the curtain on the theater of the absurd and enact serious reforms to Senate rules.”
There are a number of excellent guides out there to the vital issue of reforming the rules of the U.S. Senate. Here’s a brief guide to the guides:
- Alliance for Justice is among the leaders of Fix the Senate Now, a coalition dedicated to reforming Senate rules to end the gridlock that has stalled progressive legislation and prevented confirmation of so many judicial nominees. Their comprehensive guide to the issue is at www.fixthesenatenow.org
- AFJ has a briefing paper on the impact of the filibuster on judicial nominees.
- And then there’s this very good guide, which speaks for itself:
Paul GrimmThis evening the Senate scheduled a vote on Monday for Paul Grimm, nominee to the United States District Court for the District of Maryland. Beginning at 5 p.m. on Monday there will be up to 30 minutes of debate on his nomination, so he will likely receive a confirmation vote at or shortly before 5:30 p.m. Grimm was nominated on Feb. 16, 2012, and he has been pending for 289 days, despite facing no substantive opposition. Michael SheaThis evening the Senate also entered into an agreement to vote on Michael P. Shea, nominee to the United States District Court for the District of Connecticut, “at a time to be determined by the Majority Leader, in consultation of the Republican Leader.” Thirty minutes of debate will precede the vote. Though an exact date and time for the vote has not yet been scheduled, agreements like these are somewhat common, and the Senate typically sets a vote soon after entering into such an agreement. Shea was nominated on Feb. 2, 2012, and he was reported out of the Senate Judiciary Committee on a bipartisan vote of 15-3.In addition to Grimm and Shea, there are 17 other nominees awaiting votes on the Senate floor, all of whom the Senate could—and should—have voted on months ago.
We’ve written a lot about the failure of the United States Senate to confirm judges. But that failure is part of a wider failure – the failure of the Senate itself, brought on by the unprecedented misuse of arcane rules and procedures by the Republican minority.In addition to obstructing scores of judicial nominees, the abuse of rules, particularly the filibuster, has doomed one essential piece of legislation after another, such as energy and climate legislation, the DREAM Act, and the Employee Free Choice Act. That’s why AFJ is among the leaders of a coalition called Fix The Senate Now. And now, in a new report, AFJ is connecting the dots – illustrating the direct link between Republican stalling tactics and the crisis on the federal bench.We support modest reforms to restore balance to the legislative process. America simply cannot function with a Senate in paralysis.
Senator Charles Grassley (R-Iowa) recently responded to a letter sent to him from 16 national and Iowa groups criticizing him for unnecessary delays in confirming judicial nominees. In his response Grassley claimed that:
“[F]or the four years of this administration, we approved 160 nominations, and during the same period of time in the last Bush administration, there were 120 nominations.”
This statement is both wrong and intentionally misleading.
First off, Grassley is comparing the first four years of the Obama Administration to the second four years of the Bush Administration. This is not “the same period of time.” Second, this is particularly misleading because Bush had a comparatively huge number of confirmations in his first term—202 in fact (see chart below). During Bush’s second term, there simply were not that many vacancies to fill.
With his statistical slight-of-hand, Grassley is trying both to minimize his—and his fellow Republicans’— obstruction of President Obama’s nominees during the last four years and make himself look reasonable!
You might expect more transparency and honesty from the ranking member of the venerable Senate Judiciary Committee. Instead, it seems, we’re getting one more attempt to mislead the public and obstruct nominees going forward. Iowans—and Americans—deserve better.
For Senator Grassley’s information, here are the facts:
Jeffrey Toobin, author and legal analyst for The New Yorker and CNN (and guest at a big AFJ event in New York City in December) has an important column on the New Yorkerwebsite today on the urgent need to reform Senate rules.
In particular, he endorses a proposal that would curb the filibuster, which has been used by Senate Republicans to block almost every major Obama administration initiative. As is discussed in detail in the previous post, it’s also contributed to a critical shortage of judges, because it’s been misused to block the confirmation of federal judges – even those who are considered noncontroversial.
There are a number of proposals kicking around at the moment. Toobin singles out what may be the most elegant: require that Senators who want to filibuster do it the old fashioned way, by standing up and talking – and talking, and talking for as long as they can hold out – the way Jimmy Stewart did it in Mr. Smith Goes to Washington. That might contribute to restoring the filibuster to its intended purpose – blocking the occasional piece of legislation that the minority party considers truly egregious. Toobin writes:
The theory behind their idea is that the requirement to stand up and filibuster would create a real deterrent to the profligate use of the tactic. It’s a modest change—filibusters would still exist—but a useful one.
Though Toobin doesn’t mention it, this change also would make the misuse of the filibuster to obstruct the work of the Senate more visible – and audible – to the American people. They could watch Senate business grind to a halt as Senators filled hour after hour on C-SPAN for days at a time.
Senate leaders tend to be institutional conservatives, who worry, with some justification, that their party will be in the minority some day. But Republican obstruction has become such an obstacle to legislative progress that the risk seems worth taking.
This is especially true because judicial nominations are likely to be more of a focus for President Obama in his second term. With the House in Republican hands for the foreseeable future, it is unlikely that major legislation will pass both bodies of Congress. But the Senate has a constitutional obligation to take up Obama’s judicial nominees—and the fights over them are likely to be fierce. If Reid and his fellow Democrats give up on filibuster reform, they will likely doom the President’s second-term legacy before he even has a chance to write it.
If you’d like to ask Jeffrey Toobin about this yourself, or hear more from him on this topic, the current state of the Supreme Court and other concerns, please join us in New York City on the evening of Dec. 6, when he discusses these issues with AFJ President Nan Aron. The event is free, and you can register here.
WASHINGTON, D.C., Nov. 19, 2012 — “Ceaseless obstruction of judicial nominees” has left the federal bench with more vacancies than when President Obama first took office, according to a new study from the Alliance for Justice.
“The Republican record gives new meaning to the term ‘obstruction of justice’” said AFJ president Nan Aron. “When vacancies go unfilled, Americans wait months, sometimes years to get a chance to stand up for their rights in court. Some lose that chance entirely.”
AFJ’s report, Unfinished Business, provides the best publicly-available information on judicial nominations. It includes comprehensive statistics on President Obama’s judicial nominees since the beginning of his administration, the Senate’s confirmation process, and comparative data comparing the first-term records of the Obama, Bush, and Clinton administrations.
The report calls on the Senate to “confirm all of the 19 nominees currently pending on the Senate floor during the lame duck session. Fourteen of the 19 nominees faced no substantive opposition in the Judiciary Committee, and ten would fill judicial emergencies,” – that is, situations where a vacancy has caused such profound delays that the situation has been declared an emergency by the Administrative Office of the U.S. Courts.
“We call on the Senators to give Americans something to be thankful for and confirm these judges when they return to work next week,” Aron said.
This report is the latest in a series documenting delays in filling judicial vacancies. Among the findings:
- During President Obama’s first term, current vacancies have risen by 51%. This trend stands in stark contrast to President Clinton and President Bush’s first four years, when vacancies declined by 65% and 34%, respectively.
- Nearly one out of eleven Federal judgeships remains vacant. Judicial vacancies are nearly triple what they were at this point in President George W. Bush’s first term.
- The number of seats considered to be “judicial emergencies” has risen by 65%, from 20 at the beginning of President Obama’s term to 33.
- The Senate has confirmed far fewer nominees at this point in President Obama’s first term than it had for his two predecessors in office. The percentage of confirmed district court nominees is at historically low levels.
- Republican appointees still dominate the federal judiciary. Since the end of the Bush Administration, the percentage of Republican-appointed circuit court judges only dropped from 61.3% to 51.8%, and the percentage of Republican-appointed district court judges only dropped from 58.6% to 53.6%.
- Republicans filibustered a historic number of district court nominees. Senate Majority Leader Harry Reid (D-NV) was forced to file cloture on a record 20 district court nominees. Cloture was filed on only one district court nominee during the Clinton and W. Bush presidencies.
“In sum,” the report states, “The American people deserve a federal court system that is fully staffed and able to fulfill the promise of justice for all.”
Now that the people have voted, it’s time for our senators to do the same. And the first order of business when they return today for the lame duck session should be to address the serious vacancy crisis in our courts.
There are 19 pending nominees that have waited an average of 236 days for final confirmation votes. Over half of these nominees would fill judicial emergencies.
- Judge Patty Schwartz of New Jersey has been waiting over 400 days
- Judge Robert Bacharach of Oklahoma has been waiting over 290 days
- Judge Brian Davis of Florida has been waiting over 250 days.
Most of these nominess are noncontroversial – the Senate could approve them in minutes. But the longer the Senate fails to act on these nominees, the longer everyday Americans, from New Jersey to Oklahoma to Florida, are left to deal with a vacancy crisis in our courts.
When there are too few judges, the wait for justice can be unbearable. Forcing people to wait months, even years to stand up for their rights in court can do profound harm. Medical bills caused by injuries due to negligence may pile up while families wait for justice; parties may be forced to travel long distances as cases are shifted to districts with more judges; memories may fade, witnesses may die.
In July, the United States Senate reached a new low when, for the first time, Senate Republicans filibustered a nominee for a judgeship on a United States Circuit Court of Appeals even after the nomination had been voted out of committee with bipartisan support.
The nominee is U.S. Magistrate Judge Robert Bacharach, whom President Obama wants to appoint to the 10th U.S. Circuit Court of Appeals.The Senate has become a theater of the politically absurd, and is so poisoned with partisanship that even the two senators from Judge Bacharach’s home state, who had expressed unequivocal support for his nomination, willingly voted to ignore their obligations to the Constitution and their fellow Oklahomans.But now, at least one of those senators, Tom Coburn, is singing a different tune. He told The Oklahoman that the nominations of Bacharach and John Dowdell, who was nominated for a U.S. District Court judgeship in Tulsa, should “fly through” the Senate, when it reconvenes for a lame-duck session next week.What’s changed? There’s less partisan advantage for Republicans in trying to keep good judges off the bench. As The Oklahoman points out: “Had Republican Mitt Romney won, he would have been able to make his own judicial nominations.”In addition to Bacharach and Dowdell, 17 other judicial nominations have been stalled by Senate Republicans after being voted out of committee.But as former U.S. Attorney Dan Webber told The Oklahoman:Most of the nominees, including Judge Bacharach and John Dowdell, face little or no opposition and could be confirmed by unanimous consent or voice vote. The Senate could confirm a dozen or more nominees, including the Oklahomans, in less than an hour.We hope other Senate Republicans will read the election returns in the same way as Sen. Coburn. There is no reason the Senate can’t give swift approval to all 19 pending nominations during the lame-duck session, and begin to ease the critical shortage of federal judges, a shortage that delays, and sometimes denies, justice across the country.AFJ will be keeping the pressure on to get the Senate to move.
We are extraordinarily pleased that Barack Obama has been re-elected president of the United States, and we extend to the President our congratulations on his victory.This is an important moment for our country, Alliance for Justice, and our friends throughout the progressive community, as we unite to accelerate our efforts to foster a fair, just, and free America.We want you to know that Alliance for Justice is ready and eager to play an active, assertive, and constructive role during the second Obama administration. The president has set ambitious goals for his next four years. And so have we.
Breaking with Senate tradition, Republicans block votes on all judicial nominees, including twelve judicial emergencies.
In September 2008 the Senate – with a Democratic majority – approved 10 of President George W. Bush’s district court nominees by unanimous consent. So far this September, the Senate has confirmed only one of President Obama’s nominees. Despite this imbalance, Senate Republicans continue to block consideration of more nominees.
Just yesterday, Senate Majority Leader Harry Reid (D-NV) sought to confirm a slate of 17 federal district court nominees—almost all of whom are noncontroversial and who were reported out of the Judiciary Committee on voice votes—by unanimous consent. Senate Minority Leader Mitch McConnell (R-KY), however, objected to the request, leaving these nominees hanging. Senator McConnell’s action continued the type of obstructionism that has characterized Republicans’ approach to President Obama’s judicial nominees, which started with a filibuster of the President’s first nominee in 2009.
McConnell’s objection was particularly glaring given that twelve of the seventeen district court nominees would fill judicial emergencies – districts where courts are overwhelmed by a backlog of filings and empty benches prevent Americans from getting their day in court. As Senator Casey (D-PA) noted in his floor speech, this can mean that 86-year-old judges in senior status – judges who should be enjoying their retirement – must continue working as Senate Republicans delay, obstruct, and ultimately deny justice to those waiting at the courthouse doors.
For the most up-to-date and comprehensive information on judicial nominations, visit AFJ’s Judicial Selection page.
On September 19, Caitlin Halligan was renominated to the District of Columbia Circuit Court of Appeals, along with three nominees to federal district courts. Halligan was initially nominated on September 29, 2010 and had her Senate Judiciary Committee hearing on February 2, 2011. Typical of nominees facing Republican obstructionism during President Obama’s term, Halligan was blocked by a filibuster, losing a cloture vote 54-45 on December 6, 2011. After being returned to the President for the first time on December 17, 2011, she was renominated on June 11, 2011 and returned to the President a second time on August 7, 2012, before being renominated for a second time this week.
Halligan’s nomination has wide support from a diverse range of groups, including women’s bar associations and law enforcement officials.
For the most up-to-date and comprehensive information on judicial nominations, visit AFJ’s Judicial Selection page.
The Senate Judiciary Committee held hearings today (September 19) on the nominations of Katherine Polk Failla, to the Southern District of New York; Pamela Ki Mai Chen, to the Eastern District of New York; Troy L. Nunley, to the Eastern District of California; Sheri Polster Chappell, to the Middle District of Florida; and Mark A. Barnett, the Court of International Trade. The confirmations of Chappell and Nunley would each fill a judicial emergency vacancy, particularly Nunley’s nomination to the Eastern District of California, which faces the greatest backlog of filings in the country.
Senator Chuck Schumer (D-NY) chaired the hearing, while Senators Chuck Grassley (R-IA), Al Franken (D-MN) and Mike Lee (R-UT), Richard Blumenthal (D-CT), and Dianne Feinstein (D-CA) were also in attendance. Senator Bill Nelson introduced Chappell to the Committee, while Senator Feinstein introduced Nunley and Senator Schumer introduced Chen, Failla, and Barnett.
Each nominee spoke on the importance of judicial modesty and following precedent. All of the nominees also expressed agreement that some of the most important values of a judge are fairness, willingness to listen to and understand the parties, keeping an open mind, and maintaining the transparency and legitimacy of the bench. The nominees come from a diverse range of backgrounds, including prosecutors’ offices, civil rights enforcement, private practice, and state court judgeships.
Expedient action on nominees is especially important with the Senate session set to come to a close in the coming days. There are currently 10 nominees pending in the Senate Judiciary Committee, including 8 district court and 2 circuit court nominees, and 21 nominees pending on the Senate floor, including 17 district court and 4 circuit court nominees. If the Senate does not act soon to confirm the slew of nominees awaiting votes, the federal courts will go into the November election with 94 total vacancies, 33 of which are judicial emergencies.
For the most up-to-date and comprehensive information on judicial nominations, visit AFJ’s Judicial Selection page.
Pamela Chen and Troy Nunley
The Senate Judiciary Committee will hold hearings on Wednesday, 9/19 on the nominations of Mark Bennett to the Court of International Trade, Sheri Polster Chappell to the Middle District of Florida, Pamela Ki Mai Chen to the Eastern District of New York, Katherine Polk Failla to the Southern District of New York, and Troy Nunley to the Eastern District of California. Chappell and Nunley’s confirmations would both fill judicial emergency vacancies.
As of Wednesday’s hearing, Chappelle, Failla, and Nunley’s nominations will have been pending for 87 days, Barnett’s for 70 days, and Chen’s for 49 days. The hearing will be held at 10:00 a.m., in Room 226 of the Dirksen Senate Office Building.
For the most accurate, up-to-date information on the judicial selection process, visit AFJ’s Judicial Selection page.
Stephanie Rose confirmed to Southern District of Iowa, marking historic progress for women on the bench during Obama’s first term.
On Monday, September 10, the Senate confirmed Stephanie Rose as a federal judge for the Southern District of Iowa by a vote of 89-1, with only Senator Jim DeMint (R-SC) voting no. Judge Rose’s confirmation highlights President Obama’s historic record on appointing women to the federal bench; in less than four years, President Obama has appointed 72 women as federal judges, matching the total number of women appointed during George W. Bush’s entire presidency. Judge Rose is also the first woman to serve as a district court judge in the Southern District of Iowa. In addition to his historic number of female judicial appointments, 44.3% of President Obama’s appointees have been women, the highest percentage of any president. President Clinton had the next best record, as 29.4% of his appointees were women.
For a detailed breakdown of how President Obama compares with his predecessors in terms of the racial and gender diversity of his judicial appointees, please see the Alliance’s Judicial Selection Snapshot.
A star is born. On Sunday night’s episode of Aaron Sorkin’s new HBO show, “The Newsroom,” a member of the newsroom’s staff referenced a (real!) Alliance for Justice report as justification for doing a story on the unprecedented obstruction of judicial nominations in the Senate.
AFJ makes its cameo appearance in a scene early in the episode, when Mac McHale, the show-within-a-show’s executive producer (played by Emily Mortimer), informs the newsroom staff that, in the interest of keeping up ratings, they will have to cut several stories to make room for a story on Casey Anthony. Tragically, one of those cut turns out to be a story idea centered on AFJ’s “State of the Judiciary” report.
Season 1, Episode 8 of “The Newsroom”
Those of you with an HBO subscription can catch up on the episode here; for those without, read on for a quick transcript of the scene.
Mac: “I think you already know that starting tonight we’re leading with Casey Anthony. Does anyone have a problem with that?”
(Most of the staff raises their hands)
Mac: “Alright, well we lost almost half a million viewers to Nancy Grace last week. Does anyone still have a problem with it?”
(Staff raises their hands again)
Mac: “We’re gonna clear out some of these stories to make room. (Reading from a whiteboard) ‘Senate Obstruction Becomes Worst in U.S. History’.”
Gary: “That’s a report by the Alliance for Justice. The Senate’s confirmed a smaller percentage of Obama’s judicial appointees than any other Senate and any other President.”
Mac: “No reason to care about that” (Crosses off list)
* * *
AFJ to “The Newsroom”: Ouch! That hurts! (But thanks for the plug.)
Yesterday, for the first time, a circuit court nominee reported to the floor with bipartisan support has been successfully filibustered, breaking long-standing tradition and further shattering public confidence in the ability of the Senate to function responsibly within our democratic system. This partisan action marks a new low in the politics of obstruction, hindering the process of putting judges in empty federal court seats across the country.
Oklahoma Judge Robert Bacharach was nominated for a seat on the U.S. Court of Appeals for the Tenth Circuit. He was a noncontroversial nominee, rated unanimously “well qualified” by the American Bar Association, supported by his conservative home state senators, and reported out of the Senate Judiciary Committee with overwhelming bipartisan support.
However, earlier this summer, Senate Minority Leader Mitch McConnell (R-NV) invoked the so-called “Thurmond Rule,” to delay judicial confirmations before the election. Efforts to block Bacharach were in full force Monday night. Bacharach was four votes shy of the sixty needed for cloture. Tom Coburn (R-OK) and James Inhofe (R-OK) turned their backs on Bacharach by refusing to vote in favor of the nomination and instead voted “present.” Republican Senators Scott Brown (MA), Olympia Snowe (ME), and Susan Collins (ME) voted with Democrats to end the filibuster, while Senator Orrin Hatch (R-UT) also voted present.
The blocking of Bacharach indicates that the Republican leadership has indeed drawn the line in the sand: No more circuit court judge confirmations during an election year. It also sends the message that partisan political games are more important than justice for ordinary Americans. Now people living in the Tenth Circuit, which covers the states of Oklahoma, Kansas, Wyoming, Utah, Colorado, and New Mexico, will continue to suffer a vacancy on the appellate court that hears their cases.
What does this mean for other states? Three other circuit court nominees pending on the Senate floor, and four in committee, will not be confirmed this year simply because partisan forces have decided to keep the Senate from doing its job while they wait and see what happens in November.
This compounds an overall and ongoing vacancy crisis in the federal courts. Due to a pattern of Republican obstructionism over the course of the Obama administration, only 154 of President Obama’s circuit and district nominees have been confirmed, while President Bush had seen 197 confirmations at this point in his first term. President Obama could be the first President in at least 30 years to complete his first term with more judicial vacancies than when he took office and Americans with cases in our federal courts will have to wait longer and longer to seek justice.
This afternoon Majority Leader Reid (D-NV) filed cloture on Judge Robert E. Bacharach’s nomination to the Tenth Circuit Court of Appeals. A vote is expected next Monday at 5:30pm. Bacharach is a noncontroversial nominee, rated unanimously “well qualified” by the ABA, who was reported out of the Judiciary Committee with bipartisan support. Ultraconservative Senators Tom Coburn (R-OK) and James Inhofe (R-OK) both strongly back his nomination. Indeed, when recently asked about the efforts to block a vote on Judge Bacharach, Senator Coburn told The Oklahoman on June 12, 2012 that: “I think it’s stupid.” Senator Inhofe, in introducing Bacharach at his committee hearing, said that: “I believe that Judge Bacharach would continue the strong service Oklahomans have provided the Tenth Circuit.”
The question now is whether Senate Republicans will vote in support of an unquestionably qualified, consensus nominee.
Earlier this summer, Senate Minority Leader Mitch McConnell (R-NV) invoked the so-called “Thurmond Rule”, an informal call to arms for Republican senators to block judicial nominees before the election so as to keep seats vacant for a potential future Republican president to fill. If Republicans were to block Bacharach, however, it would be first time a circuit court nominee reported to the floor with bipartisan support has been successfully filibustered.
Blocking the confirmation of Judge Bacharach would add yet another obstructionist precedent to the growing pile of similarly inglorious precedents four years in the making. The net effect of this obstructionism has been to keep dozens of judgeships unnecessarily vacant. These efforts have gone far beyond simple political retribution. Indeed, by July 26, 2004, 197 of President Bush’s circuit and district nominees had been confirmed. By July 26 of this year, only 154 of President Obama’s circuit and district nominees have been confirmed, more than 40 confirmations fewer than at this point in President Bush’s first term. Due to Republican obstruction, President Obama will be the first President in at least 30 years to complete his first term with more judicial vacancies than when he took office.
Simply put, it’s time for Senate Republicans to stop playing politics with the federal judiciary and start confirming nominees who everyone agrees would be great judges and who are desperately needed in courtrooms around the country. Click here to tell your Senators to end the filibuster of Judge Bacharach.
For more information on vacancies and pending nominees visit AFJ’s Judicial Selection Project.
According to the Administrative Office of the U.S. Courts, Judge Michael Melloy of the United States Court of Appeals for the Eighth Circuit will take Senior Status on January 30, 2013. President George W. Bush appointed Judge Melloy to an Iowa-based seat on the court in 2002. The vacancy presents President Obama with his first opportunity to nominate someone to the Eighth Circuit, which has jurisdiction over seven states: Minnesota, North Dakota, South Dakota, Nebraska, Iowa, Missouri, and Arkansas. The court, which has 11 active judgeships, is the most Republican-dominated circuit in the country, with 9 Republican appointees and 2 Democratic appointees. It also has the worst gender balance of any circuit, as its sole female Judge, Diana Murphy, is the first and only woman ever to sit on the court.
For more information on vacancies and pending nominees visit AFJ’s Judicial Selection Project.
This evening the Senate confirmed Judge Michael Shipp to the District of New Jersey after Judiciary Committee Chairman Patrick Leahy (D-VT) asked for, and received unanimous consent to withdraw the cloture motion on Judge Shipp’s nomination and to proceed directly to a confirmation vote. Republicans forced Majority Leader Reid (D-NV) to file cloture on Judge Shipp’s nomination last week because of a dispute on an unrelated bill. This is not the first time that Senator Reid has been forced to file cloture on long-pending, exceptionally qualified nominees. In March he filed cloture on 17 nominees, after Republicans slow-walked confirmations for much of the early part of the year.
Now that Judge Shipp has been confirmed, there are 20 judicial nominees awaiting final confirmation votes, including 10 who would fill “judicial emergency” seats. The Senate should move quickly to confirm the pending nominees who are only waiting for their final votes — almost all of whom have strong bipartisan support — before the upcoming August recess.
Judge Kevin McNulty
(District of New Jersey)
On Monday, the Senate confirmed Kevin McNulty to the United States District Court for the District of New Jersey by a vote of 91-3 (with Senators Lee, DeMint, and Vitter voting as a continuing protest of President Obama’s recess appointments of executive nominees in January). Despite facing no substantive opposition, Judge McNulty waited for over seven months for his confirmation vote.
On Thursday, the Senate Judiciary Committee reported out four district court nominees (on voice votes, with Senator Lee as the only opposition):
- Frank Paul Geraci, Jr., nominee to the Western District of New York
- Fernando M. Olguin, nominee to the Central District of California
- Malachy Edward Mannion and Matthew W. Brann, nominees to the Middle District of Pennsylvania.
There are now 21 nominees awaiting final confirmation votes on the Senate floor, 10 of whom would fill seats that have been declared to be judicial emergencies by the nonpartisan Administrative Office of the U.S. Courts.
The number of nominees awaiting confirmation votes has grown recently, as the Senate has only confirmed 4 judicial nominees in the last month. With approximately 3 new vacancies arising each month so far this year, the Senate’s current confirmation pace is simply not fast enough to significantly reduce the number of existing vacancies in our courts.
There are currently 77 vacancies across the country, and another 13 seats will soon be vacant. Given that the president began his term in office with 55 vacancies, the Senate could go a long way toward getting back to that point by moving quickly to confirm the pending nominees who are only waiting for their final votes — almost all of whom have strong bipartisan support — before the upcoming August recess.
Access to justice is being stifled throughout the country, as more than eight percent of all federal judgeships are currently vacant while partisan gamesmanship in the U.S. Senate holds up the confirmation of judicial nominees.
In Pittsburgh, the City Council is responding to this crisis by calling on Pennsylvania’s senators to do all they can to fill the state’s federal judicial vacancies by the end of the year:
NOW, THEREFORE, BE IT RESOLVED that the City Council of Pittsburgh supports a strong judiciary, and calls on Pennsylvania Senators Bob Casey and Pat Toomey to recommend qualified nominees to the White House and work with their colleagues to fill the eight federal judicial vacancies in the state of Pennsylvania before the end of the year.
Pennsylvania is far from the only state suffering from the judicial vacancy crisis. There are 91 current and upcoming vacancies nationwide. Thirty-one of these are judicial emergencies. Women and minorities are largely affected by the stall on confirmation; eighteen of the 34 pending nominees are women or minorities.
A new fact sheet from Alliance for Justice calls on the Senate to stop playing partisan games and do its job to address this crisis in the weeks remaining before Congress takes its August recess, noting that:
- The 15 nominees pending on the Senate floor could receive confirmation votes immediately, but Senate Minority Leader Mitch McConnell (R-KY) has invoked the so-called “Thurmond rule” in order to attempt to halt the nominations process in an election year;
- Republican leaders are obstructing qualified, consensus nominees like William Kayatta and Robert Bacharach to seats on the First and Tenth Circuit Courts, respectively, although each has the full support of their Republican home state senators;
- Years of obstructionist tactics have left President Obama trailing President Bush 152 to 197 in total district and circuit court confirmations at this point in their respective presidencies.
Click here to download the fact sheet as a PDF.
With a growing consensus for action on nominees from voices including the American Bar Association, Chief Justice John Roberts, and a growing number of federal and circuit court judges, the White House and Senate should move swiftly to fill existing vacancies. Our justice system can’t function effectively without enough judges on the bench, and it shouldn’t be held hostage by political games. It is not hyperbole to say that justice hangs in the balance.
The nation is enduring a judicial vacancy crisis that prevents our courts from providing justice to all Americans.
President Obama inherited 55 vacancies when he was sworn into office. Without swift Senate action on pending nominees, he will become the first president in at least 30 years to finish his first term with more vacancies than he inherited, excluding newly created seats.
Senate Republicans are perpetuating this crisis by blocking votes on unquestionably qualified, consensus nominees, hoping to hold seats open in case a Republican is elected president.
Republican Leader Mitch McConnell (left) invoked
the so-called “Thurmond rule.”
Though there are 15 nominees pending on the Senate floor who could be confirmed immediately, Senate Minority Leader Mitch McConnell (R-KY) recently invoked the Thurmond rule to delay judicial confirmations before the election, especially for circuit court nominations. Republican senators have essentially been told to prioritize political bickering over access to justice for millions of Americans.
Republican leaders are obstructing unquestionably qualified, consensus nominees such as:
- William Kayatta, a Maine nominee who is supported by Maine’s Republican Senators Snowe and Collins for a seat on the First Circuit Court of Appeals; and
- Robert Bacharach, an Oklahoma nominee who is supported by Oklahoma’s Republican Senators Coburn and Inhofe for a seat on the Tenth Circuit Court of Appeals.
These nominees would normally be confirmed unanimously.
Republicans are raising obstructionist tactics to a new level, as President Obama already trails President George W. Bush 152 to 197 in total district and circuit court confirmations at this point in their respective presidencies. Confirming all pending nominees before the August recess will only marginally reduce the comparative numbers.
This obstruction is unacceptable, and senators of both parties who care about promoting good government should end it by forcing votes on every nominee currently pending on the Senate floor before the August recess.
There is a growing consensus for action on nominees. The American Bar Association, Chief Justice John Roberts, and a growing number of federal district and circuit court judges have all urged the Senate to quickly fill existing vacancies. They know that our justice system can’t function effectively without enough judges on the bench, and it shouldn’t be held hostage by political games.
Senators are in Washington for four weeks before again leaving town. It is time for them to confirm nominees and provide their constituents with the functioning courts upon which our democracy depends.
To download this information as a PDF, click here.
For more on the judicial vacancy crisis, visit AFJ’s Judicial Selection Project.
Is Strom Thurmond still casting
a shadow over Senate procedure?
His obstructionist maneuvers from 1968
have become part of Senate folk wisdom.
Yesterday, Senate Minority Leader Mitch McConnell (R-KY) announced that Senate Republicans are invoking the “Thurmond rule” to halt the confirmation of any more circuit court judges this year. Should Senator Reid (D-NV) try to schedule a vote on an appellate court judge, the GOP members of the Senate will filibuster the confirmation and deny the nominee a chance to receive an up or down vote.
This means that the 4 circuit court nominees who have been waiting for their votes since March and April would have to stay frozen in the system until at least January 2013 before the Senate would take action to confirm them.
While much press coverage of McConnell’s statement takes it as a given that the “Thurmond Rule” is an established fact of the Senate, history paints a much different picture.
The “Thurmond Rule” is a fuzzy, occasional tradition of the Senate, lodged nowhere in the formal or informal rules, which tends to be invoked in presidential election years by members of the party not holding the White House. While the “rule” is mentioned as if it is binding authority, history shows that the Senate in fact continues to confirm judicial nominees well into the fall of election years.
For example, at the end of President Bush’s first term in 2004, the Senate confirmed 23 judges in the second half of the year. At the end of President Clinton’s first term, 17 judges were confirmed.
Alliance for Justice has prepared a fact sheet on the “Thurmond Rule,” which features an informative graph on confirmation rates during election years.
Click to Enlarge
(Note that the Senate is often in recess during nearly all of August so that senators can go home and meet with constituents or campaign for re-election; confirmation rates tend to rise back to March/April levels once the Senate resumes its business in September and October. For example, the Senate was in recess between August 2 through September 6 of 1996, and from July 26 to September 6 of 2004.)
You can download the full fact sheet here.
Timothy Hillman was confirmed last night to the U.S. District Court of Massachusetts by an overwhelming bipartisan vote of 88-1.
The only “no” vote came from Senator Mike Lee (R-UT), who has a stated policy of voting “no” on all of the president’s nominees in protest of recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board (recess appointments that were necessitated by persistent partisan obstruction of the nominees to those positions).
Senator Jim DeMint (R-SC) did not appear for the vote; his spokesperson said in an interview that if he could have been there, DeMint would have lodged a protest “no” vote as well.
Timothy Hillman has been serving as a U.S. Magistrate Judge in Massachusetts. He will be filling a seat vacated when Judge Nancy Gertner took senior status on May 22, 2011. Nominated to fill the seat on November 30, 2011, it has taken Hillman 188 days to move through the confirmation process, with 89 of those days spent waiting for his final vote before the full Senate.
UPDATE: This alert is no longer active. Paul Watford was confirmed by a vote of 61-34. All Senate Democrats voted for confirmation, as did Republican Senators Lamar Alexander, Scott Brown, Susan Collins, Lindsay Graham, Dick Lugar, John McCain, Lisa Murkowski, and Olympia Snowe.
Paul Watford was nominated last fall to an “emergency” vacancy on the Ninth Circuit Court of Appeals. An uncontroversial, mainstream candidate, he has attracted support from across the political spectrum and been given the highest possible qualification rating by the nonpartisan American Bar Association.
Some Republicans have spoken out strongly against Watford. For example, Chuck Grassley of Iowa says he opposes Watford because he served as co-counsel on a case and on an amicus brief challenging Arizona’s controversial immigration law. Grassley and others had even gone so far as to begin a filibuster.
Of course, it’s not the first time Republicans have seized upon flimsy excuses to mount last-ditch opposition against well-qualified nominees.
The opposition to those was almost certainly designed merely to drag out the process and make the president look bad. And now the same thing is happening to Paul Watford.
And while that partisan game plays out on the Senate floor, our federal courts remain critically understaffed.
On issues ranging from employment discrimination to health care, federal courts play an increasingly important role in the lives of hardworking Americans. But with caseloads soaring and the nominations process bogged down in partisan bickering, too many Americans are being forced to wait too long for their day in court.
Tell your senators to confirm Paul Watford to the Ninth Circuit, where new judges are badly needed.
Alliance for Justice has documented the unprecedented obstruction of President Obama’s judicial nominees in the U.S. Senate, including a blanket filibuster of seventeen uncontroversial district court nominees. News outlets have picked up on the disturbing trend as well, but most only tell part of the story.
The National Law Journal reported (registration required) this week on the obstacles facing judicial nominees even before the Senate Judiciary Committee gets involved.
The president of Alliance for Justice, Nan Aron, agrees that had Obama made more nominations, more new judges likely would have been confirmed by now. But she said many Republican senators are withholding their recommendations or approval of potential nominees.
For instance, three judge vacancies in Georgia, including a spot on the U.S. Court of Appeals for the Eleventh Circuit, are considered judicial emergencies, but have remained empty because the White House and Georgia’s two GOP senators have been unable to agree on suitable choices, The Atlanta Journal-Constitution reported on May 9.
For Eleventh Circuit nominee Jill Pryor, those senators, Saxby Chambliss and Johnny Isakson, have not yet passed along their “blue slips” to the Senate Judiciary Committee, a courtesy given to home-state senators allowing them to express their opinion before a nomination hearing. The senators also blocked two nominees for the district court, and there are still no replacement nominees for the spots.
When and if senators do finally return their blue slips, nominees are faced with an immediate delay in the Senate Judiciary Committee, as Republicans have made it their habit to request automatic one-week extensions on every nominee. Even worse, Republican senators in the committee seem to do everything in their power to draw out the process.
For more on the record of obstruction in the Senate, download AFJ’s latest report, State of the Judiciary: Judicial Selection During the Remainder of President Obama’s First Term.
Click here to read the full National Law Journal article.
Community leaders met with key
White House staff, including
Attorney General Eric Holder
May 7 marked an important milestone in the fight to confirm President Obama’s nominees to the federal courts. Alliance for Justice and our national partners in the ongoing judicial nominations battle played a central role in organizing a White House briefing attended by 150 community and legal leaders from 27 states around the country. This remarkably diverse group of national, state, and local activists, all of whom have been engaged in the fight to nominate and confirm judges who share our values, went to the White House to share their experiences and concerns with administration officials, including Attorney General Eric Holder and the president’s judicial selection team.
The event energized the participants, and lent renewed vigor to an effort to end the destructive pattern of procedural delays that have left nearly one in ten federal judgeships without a judge.
The deep sense of urgency conveyed by the participants is motivated by the fact that the Senate has confirmed far fewer nominees at this point in President Obama’s first term than it had for his two predecessors, and that current vacancies on the federal bench have actually risen by 43% since he took office. Participants relayed the frustration growing in communities around the nation as understaffed courts face enormous backlogs and justice is frequently delayed for individuals and businesses whose lives and livelihoods often hang in the balance.
Among the topics discussed in frank exchanges with White House staff, were the need to continue to push for diverse nominees, including those significantly underrepresented such as Native Americans and people with disabilities, and to choose men and women who are young and have backgrounds beyond standard career paths like prosecutors and large-firm litigators. In the general discussion with White House officials, and later in extremely energetic breakout sessions, many participants expressed frustration with the relentless tactics of obstruction in the Senate, including the use of filibusters and the manipulation of the “blue-slip system” to allow nominees to be considered by the Senate Judiciary Committee. Participants were eager for advice on how they can be more effective in pushing back against recalcitrant senators.
After the White House briefing, the group went to Capitol Hill for a total of 47 meetings with a bipartisan list of senators or their staffs, and reiterated their call for swift action on the president’s judicial nominees and for a yes-or-no vote before the election on all those submitted in 2012.
The message to the Senate was clear: our courts matter deeply to the future of our country, and efforts to willfully stymie the confirmation of new judges do an enormous disservice to our democratic institutions.
Click here to watch AFJ President Nan Aron discuss the meeting and the state of judicial nominations with guest host Chris Hayes on the Rachel Maddow Show.
The Senate has confirmed three new judges to the federal bench: Jacqueline Nguyen to the Ninth Circuit Court of Appeals, Kristine Baker to the Eastern District of Arkansas, and John Lee to the Northern District of Illinois. Nguyen received an overwhelmingly bipartisan vote of 91-3. Baker and Lee were confirmed on voice votes.
All three judges are filling seats that have been designated as emergency vacancies, meaning there are not enough judges in the courts to hear the cases coming before them in a timely manner. Republican intransigence at every step of the nominations process has caused these nominees to be held up in the Senate for far too long.
Nguyen was stalled in the Senate for 159 days awaiting her final vote; 225 days have passed since she was first nominated. Baker, nominated 188 days ago, has been waiting 82 days for her Senate vote. Lee has also been waiting 82 days for his confirmation vote; 180 days have passed since he was nominated.
With the confirmation of these three judges, 93 current and future federal judicial vacancies remain; a third of them (34) are judicial emergencies.
The votes on Nguyen, Baker, and Lee bring to a close the deal on confirmation votes struck between Senate leadership—a deal struck after Majority Leader Harry Reid (D-NV) was forced to file cloture on 17 judges in order to make action happen on confirmations. With the deal at an end, the focus on nominating and confirming people to the bench must increase even further. Republicans could start by allowing action today on the 19 nominees still awaiting their confirmation votes. With 1 in 10 seats on the federal bench vacant, the movement to keep filling judicial seats so that ordinary people can access justice in our courts cannot be allowed to slow or halt.
On a day marked by the formal end of the deal struck between Senate Democrats and Republicans to give final votes to 14 of President Obama’s judicial nominees who were denied a vote last year and a White House meeting of community and legal leaders from around the country, Alliance for Justice President Nan Aron issued the following statement:
Today marked an important milestone in the fight to confirm President Obama’s nominees to the federal courts. With the nation’s judicial system suffering from the cumulative effects of over three years of relentless Republican obstruction, community leaders and advocates from around the country met with White House officials to lend renewed vigor to an effort to end the destructive pattern of procedural delays that have left nearly one in ten federal judgeships without a judge.
The deep sense of urgency conveyed by the participants is motivated by the fact that the Senate has confirmed far fewer nominees at this point in President Obama’s first term than it had for his two predecessors, and that current vacancies on the federal bench have actually risen by 43% since he took office. Frustration is growing in communities around the nation as understaffed courts face enormous backlogs and justice is frequently delayed for individuals and businesses whose lives and livelihoods often hang in the balance.
It is startling to realize that we are five months into the year and the Senate has yet to confirm a single nominee submitted by the president in 2012. The unprecedented level of partisan misbehavior in the Senate must end and today’s meeting reflects the unequivocal commitment of concerned citizens, national groups, and administration officials to push hard to ensure that every judicial nominee the president puts forward in 2012 gets a yes-or-no vote before the Senate adjourns this year.
The unequivocal message from today’s White House event was clear: our courts matter deeply to the future of our country and efforts to willfully stymie the confirmation of new judges do an enormous disservice to our democratic institutions.
Three federal judges will receive confirmation votes today, marking the end of a March deal struck by Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) to hold confirmation votes on 14 judicial nominees. All 14 of the judges in the deal were named by President Obama in 2011; all 14 could have—and should have—been confirmed last year. If all three receive majority votes, they will bring the total number of the president’s confirmed circuit and district court judges to 143. This figure is considerably lower than those of his two predecessors on the same date in office, with 172 of President Bush’s and 181 of President Clinton’s nominees having been confirmed by May 7 of year four.Looking more broadly at the total composition of the federal bench, today sees a federal judiciary with 430 judges appointed by Republican presidents and 367 judges appointed by Democratic presidents, or a 54%-46% Republican-appointed majority.What’s at stake for Senate Republicans in obstructing President Obama’s nominees becomes evident when considering the number of vacancies that will still be unfilled after today’s votes. If all three of today’s nominees are confirmed, there will still be 93 current and future federal judicial vacancies. If candidates to fill all 93 empty seats were to be nominated and confirmed this year, the balance among judges on the bench in December would be nearly equal, with 49% appointed by Republican presidents and 51% by Democratic presidents.By using any means available to delay, drag out, and obstruct every step in every stage of the nominations process, Senate Republicans are preventing the restoration of balance to the federal bench. Even worse, they are also laying the groundwork for what could be a drastic increasein the current imbalance.Each nominee prevented from moving through the process and receiving a vote in the Senate adds to the potential that a vacancy will carry over to next year. And if, for example, every one of those 93 remaining vacancies were to be filled with Republican appointees, the federal bench would be comprised of 523 Republican appointees and 367 Democratic appointees… a 58%-42% split. Some partisans in the Senate might see that possible outcome as a powerful incentive to continue their unprecedented and unrelenting obstructionist tactics.While the partisan games continue in the Senate, 250 million Americans live in a community affected by a judicial vacancy.For an in-depth look at the state of judicial nominations as of May 7, see Alliance for Justice’s newly released report The State of theJudiciary: Judicial Selection During the Remainder of President Obama’s FirstTerm. For the most comprehensive, up-to-date information on judicial nominations, visit the Judicial Selection Project website.Update: All three of Monday’s nominees were confirmed; one by an overwhelmingly bipartisan margin, and the other two on unopposed voice votes.
This weekend, MSNBC host Chris Hayes and The Atlantic correspondent James Fallows highlighted AFJ’s new report on judicial confirmations during the Obama presidency.
Fallows wrote a follow-up piece for his blog on TheAtlantic.com, focusing on some key points from the report, including some context from recent history:
For all their differences, George W. Bush and Bill Clinton were able, during their first three years in office, to place many more judges on the federal bench than left or retired. Thus, the vacancy rate went down. Obama has been able to place many fewer. Thus vacancies have gone up.
For more information on the judicial vacancy crisis and Republican obstruction, see AFJ’s new report, The State of the Judiciary: Judicial Selection During the Remainder of President Obama’s First Term.
And this morning, 150 community leaders from all across the country are convening at the White House to discuss the judicial vacancy crisis with some of President Obama’s key staffers. Stay tuned for updates from those meetings.
Next Monday, May 7, 150 community leaders from 27 states will travel to Washington to meet with White House officials about the vacancy crisis in America’s federal courts. Nearly one out of every ten federal judgeships remains vacant, and more than 250 million Americans live in a community with a courtroom vacancy.
A deal between Senate Republicans and Democrats to allow judicial nominations to proceed in the Senate expires May 7th, and the community leaders are urging the Senate to hold final up-or-down votes on all pending nominees.
After the White House meeting, the community leaders will visit the offices of key senators to urge them to work to end the delays that have plagued the Senate confirmation process since the beginning of the Obama presidency. The community leaders hope their conversations in Washington will help national leaders understand how harmful the confirmation delays have been to Americans who are seeking justice.
For more information on the judicial vacancy crisis and Republican obstruction, see AFJ’s new report, The State of the Judiciary: Judicial Selection During the Remainder of President Obama’s First Term.
Following on the confirmation of Brian Wimes to the Eastern and Western District Court of Missouri on Monday, further action to fill judicial vacancies in U.S. District Courts this week included the White House making four district court nominations, the Senate Judiciary Committee reporting out three nominees to the Senate floor, and the full Senate confirming two district court nominees.
On Thursday, the Senate voted 97-2 to confirm Gregg Costa to a seat in the Southern District of Texas, with Senators Jim DeMint (R-SC) and Mike Lee (R-UT) voting no in their continuing efforts to scold President Obama for using his recess appointment authority to make Executive Branch appointments. David Guaderrama was confirmed on a voice vote to a seat in the Western District of Texas.
It took 232 days from the time of Costa’s nomination for him to be confirmed, with 148 of those days spent on the Senate floor awaiting a final vote. Guaderrama’s consensus confirmation by voice vote was also delayed for 148 days in the Senate. Both seats had been declared “judicial emergencies” by the Administrative Office of U.S. Courts.
During the debate, Senator Kay Hutchinson (R-TX) erroneously claimed “we have confirmed the same—roughly the same number of district judges as President George Bush and President Clinton did in their first terms, and to my knowledge, we’re not holding up nominations at all.” In fact, with the confirmations of Costa and Guaderrama, 113 Obama district judges have been confirmed compared to 142 for President Bush and 151 for President Clinton at comparable dates in their terms.
Earlier on Thursday, the Senate Judiciary Committee reported out:
- Michael Shea, nominated to the District of Utah. Shea was reported on a vote of 15-3 with Senators Lee, John Cornyn (R-TX), and Tom Coburn (R-OK) voting no.
- Robert Shelby, nominated to the District of Connecticut on a voice vote with Sen. Lee opposing.
- Gonzalo Curiel, nominated to the Southern District of California, on a voice vote with Sen. Lee opposing.
Senator Lee has vowed to oppose every single one of President Obama’s nominees, regardless of merit or circumstance. He will even vote against nominees — like Shelby — who would fill vacancies in his home state and who he has claimed to support.
On Wednesday, President Obama nominated four district court judges:
- Terrence Berg to fill an emergency vacancy in the Eastern District of Michigan
- Jesus Bernal to fill an emergency vacancy in the Central District of California
- Shelly Deckert Dick to fill a vacancy in the Middle District of Louisiana
- Lorna G. Schofield to fill a vacancy in the Southern District of New York
If confirmed, Schofield will be the first person of Filipino descent to serve as an Article III judge in American history.
At the end of the week, there are 96 current and future judicial vacancies, with 22 nominees awaiting votes by the full Senate. With 1 in 9 seats on the federal bench vacant, the Senate should make a priority of voting on these nominees and filling our courtrooms so that people turning to our court system for justice can find it.
For the most comprehensive, up-to-date information on judicial nominations, visit the Judicial Selection Project website.
In recent presidential election years, senators from the political party that does not hold the presidency have threatened to slow or halt the pace of non-consensus judicial confirmations. Over time, this practice has come to be known as the “Thurmond Rule,” named after Senator Strom Thurmond, who opposed President Johnson’s nomination of Abe Fortas to be Chief Justice of the Supreme Court during the summer of 1968.
The Thurmond Rule is not a formal Senate procedure or a bipartisan agreement, nor has its meaning or parameters been clearly articulated. In fact, as shown below, over the last 30 years, confirmations of district and circuit court nominees have continued well into presidential election years under both Democratic and Republican presidents.
Click to Enlarge
Alliance for Justice has prepared a brief fact sheet on the Thurmond Rule. Click here to download the PDF.
This morning the Senate Judiciary Committee reported five judicial nominees to the Senate floor:
- William Kayatta, Jr., nominated to the First Circuit Court of Appeals
- John Fowlkes, Jr., nominated to the Western District of Tennessee
- Kevin McNulty, nominated to the District of New Jersey
- Michael Shipp, nominated to the District of New Jersey
- Stephanie Rose, nominated to the Southern District of Iowa
The nominees were reported on a voice vote; Ranking Member Chuck Grassley (R-IA) stated that Senator Jeff Sessions (R-AL), who did not attend the meeting, wished to go on record with a vote of “no” against the nomination of Kayatta. Senator Mike Lee (R-UT) voted “no” on all five nominees, continuing to carry out his threat to oppose every single one of the president’s nominees regardless of merit or circumstance in retaliation for the recess appointments of Richard Cordray to head the Consumer Financial Protection Bureau and several appointments to serve on the National Labor Relations Board.
Senator Chuck Schumer (D-NY) voted “present” on McNulty, citing a personal conflict of interest (McNulty is the senator’s brother-in-law).
All of the Democratic committee members were present for the vote; the only Republican members who attended this regularly scheduled weekly meeting were Senators Grassley and Lee.
Three additional District Court nominees were on the agenda and could have been reported out to the Senate floor, but Senator Grassley stated that the Republican members were going to take advantage of a committee rule allowing nominees to be automatically held over without cause until the next meeting. This has been a persistent delaying tactic of the Republican members, who have invoked the automatic hold-over rule for all but one of the president’s judicial nominees during this Congress in order to drag out the confirmation process as long as possible. As a result, the committee has to wait until its next meeting to consider the nominations of Michael Shea to the District of Connecticut, Gonzalo Curiel to the Southern District of California (an emergency vacancy), and Robert Shelby to the District of Utah.
Today’s action leaves 11 nominees pending in committee and increases the number of nominees awaiting Senate confirmation votes to 22. Under the March 14 deal on confirmations reached by Senate Majority Leader Harry Reid (D-NV) and Minority Leader Senator Mitch McConnell (R-KY), six of these should receive their votes by May 7, leaving at least 16 seats vacant because of partisan delay if the knee-jerk obstruction of judicial nominees continues.
For the most comprehensive, up-to-date information on judicial nominations, visit the Judicial Selection Project website.
Yesterday the Senate confirmed Stephanie Dawn Thacker by an overwhelming bipartisan vote of 91-3 to a seat on the Fourth Circuit Court of Appeals. The only “no” votes came from Republican Senators Mike Lee, Jim DeMint, and David Vitter, who have made it their habit to vote against all of President Obama’s nominees, regardless of merit or circumstance.
Thacker is the first woman from West Virginia to sit on the Fourth Circuit, the federal appellate bench that covers Maryland, Virginia, North Carolina, and South Carolina in addition to West Virginia; her confirmation will create a bench where four of the sixteen judges are women.
Thacker was nominated to the seat on September 8, 2011. Moving expeditiously through the Senate Judiciary Committee, she had her hearing on October 4, and was unanimously approved by the committee on November 3.
At that point, proceedings bogged down due to deliberate obstruction by Republican senators who are attempting to prevent President Obama’s nominees from filling the nearly 100 vacancies on the federal bench.
Thacker waited 166 days after committee approval for her confirmation vote. As Judiciary Committee Chairman Patrick Leahy (D-VT) noted, over five and a half months passed before a nominee who received unanimous support in committee received her up-or-down vote. Of the 221 days since she was nominated, 25% of that time was spent in committee; the remaining 75% saw her nomination stalled on the Senate floor.
The vote on Thacker was obtained as part of a deal worked out after Senate Majority Leader Harry Reid (D-NV) was forced to file cloture to break a blanket filibuster on 17 district court nominees. The deal, reached on March 14, allowed for 12 of those nominees, in addition to two circuit court nominees, to receive votes by May 7. Thacker was one of the two agreed-upon appellate nominees in the deal.
She is only the second circuit court nominee to be confirmed by the Senate this year, and there are 16 remaining vacancies in the circuit courts.
Partisan games may simply be dismissed as “politics as usual.” But while Republicans play games with the nominees, millions of people are being harmed by an understaffed bench, threatening their ability to seek justice in our courts.
For the most comprehensive, up-to-date information on judicial nominations, visit the Judicial Selection Project website.
When the Senate returns from recess on April 16, one of its first scheduled votes will be on the nomination of Stephanie Thacker to the Fourth Circuit Court of Appeals. The vote on Thacker is part of the March 14 agreement reached by Senators Harry Reid and Mitch McConnell to allow the Senate vote on the confirmations of 14 judicial nominees by May 7.
Thacker will mark the eighth vote of this agreement, and will be only the second circuit court nominee to receive a vote in the Senate this year.
On April 19, the Senate Judiciary Committee is scheduled to consider five judicial nominees at its Executive Business Meeting. All five were held over at the committee’s last meeting on March 29 by request of the Republican members, a delaying tactic that has been used to slow walk all but one of President Obama’s judicial nominees in this Congress. Perpetually slowing down the confirmation process in committee is one of several ways in which Senate Republicans are working to prevent President Obama from filling judicial vacancies in the midst of a crisis that has left 1 in 9 seats on the bench empty.
The committee will hold hearings on nominations to the Privacy and Civil Liberties Oversight Board next week, and therefore will not be holding hearings on additional pending judicial nominees.
On Wednesday, AFJ President Nan Aron joined a panel hosted by American University Washington College of Law on the topic “The Judicial Confirmation Process 25 Years After Bork.” She, along with former U.S. Senator Arlen Specter; Charles Cooper, a former director in President Reagan’s Office of Legal Counsel; Michael Gerhardt, Professor of Constitutional Law at University of North Carolina School of Law; and David Savage of the Los Angeles Times shared perspectives on the impact of the Robert Bork Supreme Court confirmation hearings in 1987.
Responding to charges from Cooper that the Bork confirmation hearings were the moment when civil discourse was lost and “ugliness took a quantum leap downward,” resulting in “vulgarity” and “coarseness,” Aron incisively pointed out that Bork was appointed by Reagan as delivery on the president’s promise to give the right wing of his party an ultra-conservative judiciary. Opposing Bork, according to Aron, was an attempt to prevent partisan politics from capturing the Court and rolling back precedents on civil rights and women’s rights established by the Warren Court.
It was not the hearing process that prevented Bork from being confirmed, stated Aron, but Bork’s record of active opposition to priorities of the vast majority of ordinary people—a record that was well established and public long before Bork was appointed. Savage agreed that Bork was a non-starter for confirmation before his hearings even began, since his well-known opposition to the 1964 Civil Rights Act and to the Roe v. Wade decision automatically meant he was going to receive “no” votes from a majority of senators.
Senator Specter, whose stringent questioning of Bork during the confirmation process was one of the notable aspects of the hearings twenty-five years ago, expressed frustration that nominees refuse to candidly answer questions during their hearings before the Senate Judiciary Committee. Acknowledging that a nominee’s record is publicly known before hearings begin, Specter stated that the hearings should allow senators the opportunity to learn how a nominee is “going to approach the job of being a justice” and how they relate the law to the lives of the people it affects.
Specter also had strong words about the failure of the Court to abide by ethics and recusal standards that bind all other federal judges, characterizing the current Court’s attitude as one that borders on “the public be damned” and of being “an imperial court.” Noting that “public confidence in the Court is the bedrock of democracy—it can’t survive without it,” Specter strongly called for the Court to take measures that will increase transparency and accountability to the people.
The Judiciary Committee reported three nominees to the Senate floor at its Executive Meeting Thursday morning. Committee votes on Richard Taranto to fill an appellate seat on the Federal Circuit and Robin Rosenbaum to fill a seat in the Southern District of Florida were supposed to be taken on March 15. However, due to the failure of sufficient committee members to appear on that day (seven of the Democratic committee members were present, but Ranking Member Senator Chuck Grassley (R-IA) was the only Republican to appear), the Committee was two members short of the quorum required to do business.While they were still waiting to see if more members would show up, Senator Grassley noted that if a quorum was established he would be requesting that consideration of Taranto and Rosenbaum be delayed for a week. Chairman Patrick Leahy (D-VT) noted that he and Senator Grassley had discussed establishing a process whereby business meetings held for the sole purpose of invoking the extension of consideration of nominees could take place without a quorum, but that other Republican members of the Committee had objected.Before recessing the meeting where no business had been able to take place, Senator Leahy stated, “The Republicans requested this meeting, even though it would be a pro forma type of thing. They seem to be boycotting the meeting.”The same thing happened at the regularly scheduled business meeting of the Judiciary Committee the following week, March 22, when Taranto, Rosenbaum, and Gershwin Drain, nominee to the District Court of the Eastern District of Michigan, were scheduled to be considered. Eight of the Democratic Committee members sat and waited; they were two members short of a quorum. Twenty-six minutes after the meeting was scheduled to begin, Senator Grassley arrived, but no other Republican members came.When Senator Leahy again noted that it appeared that the Republican members were boycotting the committee, Senator Grassley responded that he was not aware of a boycott attempt, but acknowledged that it would be unlikely that any other member of his caucus would appear and allow the committee to conduct its business. Senator Leahy recessed the committee after stating that he would convene it later that afternoon off of the Senate floor when a series of votes were scheduled to take place. That meeting did occur, and the Republican committee members invoked the automatic week’s extension, with the result that no action to move the nominations process forward occurred.A quorum did appear on March 29. Taranto and Rosenbaum were reported out of Committee on voice votes with only Senator Lee opposing them. A roll call vote was held on Drain, resulting in a party-line vote of 10-8. Five other listed nominees – one to a Circuit Court seat and four to District Court seats – were held over. Since the Senate is leaving on recess after this week, these five judges – William Kayatta, Jr. to the First Circuit, John Fowlkes, Jr. to the Western District of Tennessee, and Kevin McNulty and Michael Shipp to the District of New Jersey – will not receive consideration by the Committee to be advanced to the Senate floor for confirmation until April 19 at the earliest.In addition to many other tactics to delay, slow-walk, and obstruct the nominations process – tactics that range from refusing to review background materials in a timely manner, to failing to return blue slips, and to filibustering consensus nominees – Republicans in the Senate are also shirking their Constitutional duty to advise and consent by refusing to show up and let the Committee conduct its business. While they are playing the politics of obstruction, justice for millions of ordinary people is being delayed and denied due to a judicial vacancy crisis that has 1 in 10 seats on the federal bench empty. For each day that the nominations process is stalled in the Senate, Americans across the country are prevented from having their day in court.
This week, the Senate incrementally moved forward with its responsibility of confirming appointees to the federal bench in the midst of a judicial vacancy crisis that has left 1 in 10 seats empty. Three District Court nominees had their Senate Judiciary hearings, three were reported out of committee to await their confirmation votes on the Senate floor, and two were confirmed as part of the deal on confirmation votes struck earlier this month between Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY).On Wednesday, the Senate voted to confirm United States District Court nominees Miranda Du to serve the District of Nevada by a vote of 59-39 and Susie Morgan to serve the Eastern District of Louisiana by a vote of 96-1. It took 147 days for Du, and 140 days for Morgan, to receive their confirmation votes after being reported out of the Judiciary Committee. Two hundred and forty days passed from the date of Du’s nomination to her confirmation to fill an emergency judicial vacancy; the time was even longer for Morgan, who was in the Senate process for 296 days.Earlier that day, hearings were held for District Court nominees Michael Shea, Gonzalo Curiel, and Robert Shelby nominated to the District of Connecticut, the Southern District of California, and the District of Utah, respectively. The hearing was chaired by Senator Richard Blumenthal (D-CT); Ranking Member Senator Chuck Grassley (R-IA) and Senator Mike Lee (R-UT) were also in attendance. President Obama appointed Curiel and Shelby on November 10 and November 30 last year, respectively; Shea was appointed on February 2 of this year. The hearing was non-controversial. Now, they await consideration by the Committee and a vote to report them to the Senate floor, where the waiting process for a confirmation vote will begin. While Shea, who was nominated on February 2 of this year, had to wait 56 days from nomination to the time of his hearing, both Curiel and Shelby had to wait twice as long to take the next step forward in the confirmation process. Curiel, nominated on November 10, 2011, waited 140 days for his hearing. Shelby, nominated on November 30, waited 120 days.The Judiciary Committee reported three nominees – Richard Taranto, Robin Rosenbaum, and Gershwin Drain – to the Senate floor on Thursday. They join 15 other judicial nominees who are awaiting confirmation by the Senate before they can assume their seats and being to serve people by dispensing justice in our nation’s federal court system. As the Senate is leaving town for a two-week recess, no further action will take place to confirm judges until April 16, when a vote on the nomination of Stephanie Dawn Thacker to the Fourth Circuit Court of Appeals is scheduled to take place.
By the Numbers
3 District Court nominees had hearings before the Senate Judiciary Committee3 nominees reported out of Committee to the Senate floor: 1 Circuit Court nominee, 2 District Court nominees
2 District Court nominees confirmed
The week comes to a close with:
97 total judicial vacancies, including 33 judicial emergency vacancies
80 current vacancies; 17 future vacancies
17 circuit court vacancies; 80 district court vacancies
34 pending nominees; 63 vacancies without nominees
16 nominees pending in committee; 18 pending in the Senate
Yesterday the Senate confirmed Judge Gina Marie Groh to a seat on the United States District Court for the Northern District of West Virginia by an overwhelmingly bipartisan vote of 95 to 2 and Michael Fitzgerald to a seat on the United States District Court for the Central District of California by an overwhelmingly bipartisan vote of 91-6.
Groh, who since 2006 has been serving as a judge on the 23rd Judicial Circuit Court of West Virginia, was nominated to the District Court on May 19, 2011. On October 6, 2011, the Senate Judiciary Committee reported her nomination to the full Senate on a unanimous voice vote. Groh waited 162 days following her committee vote for the full Senate to consider her nomination; 302 days have passed since she was nominated to fill the seat.
Fitzgerald, a partner at Corbin, Fitzgerald & Athey LLP in Los Angeles, was nominated on July 20, 2011. He is the third openly gay Obama judicial appointee to be confirmed to serve on the federal bench. Fitzgerald was reported out of the Senate Judiciary Committee by a unanimous voice vote on November 3, 2011, but was still forced to wait 134 more days for the Senate to confirm him to fill his emergency vacancy seat; his wait time from nomination to confirmation was 240 days.
Yesterday’s votes were the first two in a Senate deal struck to hold confirmation votes on 14 judicial nominees by May 7. With 100 current and future judicial vacancies on the federal bench, it is vital that the Senate continue to take action to confirm judges and ensure Americans access to a fully staffed judiciary when they turn to the courts seeking justice.
For the most up-to-date information on judicial vacancies and nominations, see the Alliance for Justice Judicial Selection Project webpage.
For Immediate ReleaseALLIANCE FOR JUSTICE DISAPPOINTED BY SENATE’S RETURN
TO INADEQUATE CONFIRMATION PACE
Washington, D.C., March 14, 2012—Alliance for Justice President Nan Aron issued the following statement regarding the deal reached by Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell to allow votes on 14 judicial nominees over the next two months:
We are disappointed by the United States Senate’s continued delay in carrying out its constitutional responsibility. With 102 vacancies in the federal courts, the Senate should make the staffing of the judiciary a priority. But as we saw yet again today, many in the Senate would rather turn a routine confirmation process into a political spectacle.
After an attempted filibuster of 17 district court nominees who enjoyed bipartisan support, the Senate is now stringing out votes on 14 nominees over the course of three months. Those nominees could have been confirmed today.
Equally disturbing is Minority Leader McConnell’s assertion that President Obama has seen more of his nominees confirmed than President Bush. That couldn’t be farther from the truth. In fact, after the first three years of his presidency, 168 of President Bush’s nominees had been confirmed. In comparison, only 122 of President Obama’s were. By the end of this year, the Senate will need to confirm 76 more nominees in order for President Obama to have seated as many new judges as President Bush did during his first term.
Only one day after Republican obstruction forced Senate Majority Leader Harry Reid (D-NV) to file cloture petitions on 17 long-pending district court nominees, the nonpartisan Administrative Office of the U.S. Courts released a report finding that “total civil and criminal filings in the district courts rose 2 percent to 367,692 in fiscal year 2011.”
The Administrative Office data reflected a surging caseload in types of cases that are critically important to millions of American businesses and individuals. For instance, filings in consumer credit cases rose 15%, filings in intellectual property cases rose 11%, and filings in civil rights cases rose 5%. Digging even deeper into the data, you find that civil rights filings related to the Americans with Disabilities Act rose 17% and intellectual property rights filings involving patents jumped 24%.
At the same time that courts have been swamped with this wave of new case filings, the federal judiciary has endured a judicial vacancy crisis. There are now 85 vacant or soon to be vacant federal district court seats—approximately one out of every 8 judgeships. Twenty-eight of these vacancies are so dire that they have been declared to be “judicial emergencies.”
Despite these facts, Republican senators have blocked confirmation votes for unquestionably qualified, consensus nominees. Of the 17 district court nominees awaiting final votes, eight were reported out of the Senate Judiciary Committee unanimously, and another five were reported out with only one vote in opposition. Eight of these nominees would fill judicial emergency seats. Twelve of these nominees would fill vacancies in states with at least one Republican senator.
Moreover, as the Administrative Office findings show (.pdf link), caseloads rose in the districts of 11 of the 17 pending nominees. Two cite just two examples:
- The caseload rose 9.7% in the Southern District of Texas. Nominee Gregg Costa was nominated to a vacancy in this district in September 2011, and he was reported out of the judiciary committee unanimously.
- The caseload rose 10.9% in the Western District of Missouri. Nominee Brian Wimes was nominated to a vacancy in this district in September 2011, and he was reported out of the judiciary committee with only one vote in opposition.
Nonetheless, Republicans are obstructing nominees at a historic pace. The 17 district court nominees have been pending on the floor for over 80 days on average, which is four times as long as the 22 days on average that President George W. Bush’s district court nominees waited. Moreover, an amazing 57 of Bush’s first-term district court nominees were confirmed within a week of being reported, while only five of President Obama’s nominees have received the same treatment.
With rising caseloads and dozens of judicial emergencies plaguing our courts, millions of Americans are being denied access to justice, often with dire consequences for their lives and livelihoods. It’s time for the Republican obstruction to end.
On Sunday, the Washington Post looked at the life experience of the current Supreme Court justices. It examines a paper written by Professor Benjamin Barton called “An Empirical Study of Supreme Court Justice Pre-Appointment Experience” that reveals just how narrow the pre-Court life experiences of justices of the Roberts Court have been.
From the establishment of the Court through the tenure of Justice Sandra Day O’Connor, there had always been at least one justice on the Supreme Court who held elective office. Since the confirmation of Justice Samuel Alito, however, nobody on the Supreme Court has ever won an election. This is perhaps the most striking finding of Barton’s study, though there are others. On the current Court, no justice was ever a state court judge, and only Justice Sonia Sotomayor was a trial judge.
Justices on the current Court are much more likely to have private practice experience in the largest law firms, which tend to have large corporations as clients, and much less likely to have private practice experience with small or solo practice firms. In fact, only two justices have never had private practice experience, and they both sit on the Court today (Justices Stephen Breyer and Samuel Alito).
The Supreme Court is in danger of becoming unrepresentative of America as a whole, and even of the legal profession. Justices who have spent time in the biggest law firms defending corporate clients, and who have resided for longer and longer inside the insular legal environment of Washington, DC, bring their own valuable experiences to the Court’s chambers. However, when these experiences are the only ones represented by justices of the Supreme Court, perspective and insight about the law as it is applied to a wide variety of people and situations may be missing.
Happily, the Supreme Court has more gender and ethnic diversity than ever before. The historical trend of opening up the political space to more and more Americans has reached to this most elite of institutions. One of the only two African American justices in history sits on the current Court. The first Hispanic-American justice was seated only a few years ago. Three of the four female justices in history are hearing cases, making a Court where one-third of the justices are women.
Ensuring gender and ethnic diversity on the federal bench allows the judiciary to draw upon the breadth of American experience and history in rendering equal justice under law. But it is just as important that we do not lose sight of the importance of having a diversity of professional backgrounds as well.
We should make sure that the Supreme Court has an understanding of, for example, the difficulties facing public defenders and their clients, the realities of practicing in all sizes of law firms with all types of cases, the knowledge of the legal system that comes only from extensive experience with trial practice, the importance of public interest firms in ensuring the rights of everyday Americans, and the way that the decisions and logic of the Court can affect Americans outside the Beltway.
Alliance for Justice recently published an extensive report on President Obama’s progress on judicial nominations through his first three years. We found that President Obama has a stellar record of appointing women and minorities to the bench, but that he has appointed more prosecutors and attorneys from large law firms than public defenders or public interest attorneys. In our Judicial Selection Snapshot, we provide up-to-date information about all federal judicial nominees, including information on the nominees’ professional backgrounds.
Professor Barton has shed light on the historical anomaly that is the current Roberts Court, and has made a powerful argument on why this lack of diversity in the marbled cloister of the Supreme Court merits the attention of all Americans who care about ensuring that the Supreme Court provides equal justice for everyone. Alliance for Justice will continue to fight to make sure that all levels of the federal judiciary are filled by judges with diverse life experiences prior to joining the bench.
Steps taken this week to address the judicial vacancy crisis that has left 1 in 10 seats on the federal bench empty include the confirmation of one judge, hearings for three nominees, a Senate Judiciary Committee vote on one nominee, and the nomination of new people to become Article III judges.
On Monday, the Senate voted to confirm Margo Kitsy Brodie to be a United States District Court judge in the Eastern District of New York by an overwhelmingly bipartisan vote of 86-2. Due to obstruction from Senate Republicans, it took 145 days for Judge Brodie to receive her final confirmation vote after being unanimously reported out of the Senate Judiciary Committee on October 6 of last year.
Judiciary Committee Hearings for three nominees were held on Wednesday: Richard Taranto to serve as a United States Circuit Judge for the Federal Circuit, Gershwin Drain to serve as a United States District Court judge for the Eastern District of Michigan, and Robin Rosenbaum to serve as a United States District Court judge of the Southern District of Florida.
That evening, President Obama sent the names of two new judicial nominees to the Senate: Brian Davis, nominated to the Middle District of Florida, and John Dowdell, nominated to the Northern District of Oklahoma.
Thursday, the Judiciary Committee reported Andrew Hurwitz to the Senate floor on a bipartisan vote of 13-5; consideration of four additional nominees was stalled due to Republicans reflexively invoking a Committee rule allowing for a one-week delay without having to give a reason.
During the hearing on Wednesday, committee Chairman Senator Patrick Leahy (D-VT) spoke about Republican obstruction of the entire nomination process, both in Committee and on the Senate floor. He said:
I have accommodated Senator Grassley’s preferred schedule now for several months, holding a hearing for only one nominee in all of December and moving our last hearing back a week at his request. Regrettably today’s hearing is another with less than a full slate of nominees. This is true of both of our February hearings because the minority did not review background paperwork of the nominees I wanted to include. With vacancies on Federal courts across the country remaining extremely high, as they have throughout the term of the Obama administration, we cannot afford to slow down our consideration of nominations in this manner.
Senator Leahy went on to note that with judicial vacancies at historic highs, the crisis on the courts is being exacerbated with every day that Republican senators slow-walk and obstruct the process of giving due consideration to the President’s nominees and allowing them a timely up-or-down confirmation vote by the full Senate.
By the Numbers
2 new nominations
3 nominees who had hearings before the Senate Judiciary Committee: 1 circuit court nominee and 2 district court nominees
1 nominee reported out of Committee to the Senate floor
1 nominee confirmed: Margo Kitsy Brodie to the Eastern District of New York
The week comes to a close with:
103 total judicial vacancies, including 34 judicial emergency vacancies
84 current vacancies; 19 future vacancies
17 circuit court vacancies; 86 district court vacancies
43 pending nominees; 60 vacancies without nominees
23 nominees pending in committee; 20 pending in the Senate
Senate Democrats took to the Senate floor today to call out Republicans’ continuing efforts to delay the confirmation of qualified, consensus judicial nominees in the face of a longstanding judicial vacancy crisis.
Senator Dianne Feinstein (D-CA)
Today, partisanship has stalled even the most uncontroversial judicial appointments. Senate Republicans allowed no nominees to be confirmed at the end of the last session, and have allowed but five so far this year. In this environment, even those reported out of committee by voice vote, without any controversy, are unable to receive a floor vote for many months, if they ever receive one at all.
It’s clear that we’re seeing a degree of obstruction that’s unprecedented, and that hampers the ability of the judicial and executive branches to perform their constitutional functions. It is preventing us, the legislative branch, from fulfilling the responsibility that we owe to the two other branches of government.
Senator Chuck Schumer (D-NY)
One out of ten—let me repeat that—one out of ten seats on the federal bench is currently vacant. Judicial vacancies are double—double—what they were at this point in President Bush’s first term. We have confirmed only three judicial nominees this session, only five in the past 2 months.
. . .
What is going on today is obstruction, plain and simple. Obstruction against anybody, any nominee, and obstruction at unprecedented levels.
Senator Richard Durbin (D-IL)
A unanimous vote or a strong bipartisan vote in the judiciary committee used to be a signal of success on the floor. Not anymore. At this point, they reach the ultimate roadblock. They are stopped on the Senate floor by the Republican minority. It isn’t just unfair to judicial nominees, many of whom have been proposed by Republican Senators. It is fundamentally unfair to our court system.
Senator Chris Coons (D-DE)
As senators, we have a responsibility to advise the President as to nominations and where we agree, to consent. And where we don’t, each of us is free to vote “No.” Some senators have suggested they oppose all nominations in oppositions to the President’s recess appointments. And in my opinion, a pledge to oppose all nominations is a pledge not to do his or her job. In my view, we ought not to make such a pledge. In my view, while so many Americans are out of work and so many of us are here on the public payroll, we can, we should, and we must move forward with judicial nominees.
Senator Amy Klobuchar (D-MN)
[Courts] impact real people every day, whether we are talking about people seeking to protect their rights under the Americans with Disabilities act or companies trying to resolve commercial disputes. . . . Unreasonable delays in court proceedings undermine our system of justice.
Senator Ben Cardin (D-MD)
I am concerned, Mr. President, that our judicial confirmation process here in the Senate has broken down due to partisanship, particularly for non-controversial judges. . . . The real victim here is not only the nominee and their family that are awaiting final Senate action. The real victim is the American people, who face increasing delays in courts that are overburdened and understaffed. A higher vacancy rate means lack of timely hearings and decisions by our federal courts, affecting our citizens’ ability to have access to justice and a fair and impartial resolution of their complaints.
Senator Barbara Boxer (D-CA)
The lack of action on these qualified nominees is hurting our people.
Senator Pat Leahy (D-VT)
These highly qualified – consensus – nominees should be confirmed without further delay. They should have been confirmed last year. . . . One hundred and thirty million Americans live in circuits or districts with a judicial vacancy that could be filled if Senate Republicans would consent to votes on these nominees. The delays are as damaging as they are inexplicable.
The Senate Democratic caucus assembled a video of some of the senators’ speeches. Watch now:
Nineteen judicial nominations reported favorably by the Senate Judiciary Committee await confirmation by the full Senate. Fourteen of those nominations were reported by the Judiciary Committee last year; seventeen of the 19 nominations pending before the full Senate received strong bipartisan support from the Judiciary Committee.
The Senate should vote to confirm these nominees without delay.
For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Project webpage.
** UPDATE: THIS ALERT IS NO LONGER ACTIVE **
A small handful of senators, led by Mike Lee of Utah and Rand Paul of Kentucky, have committed to stalling or blocking every single judicial nominee put forth by President Obama.
And they’re getting away with it because the reporters, the consultants, and the pollsters — and even many of their colleagues — just haven’t paid much attention to the holds on nominees, the “extended debate,” and the threats of filibusters.
But the vast majority of senators oppose these partisan games and obstructionist tactics, and we need those senators to stand up and speak out.
When the Senate returns from its Presidents’ Day recess next Monday it will vote on the nomination of Margo Kitsy Brodie to a seat on the United States District Court for the Eastern District of New York. Brodie was nominated to the seat on June 7, 2011.
A graduate of St. Francis College and of the University of Pennsylvania School of Law, Brodie has served for thirteen years as an Assistant United States Attorney. She is currently the Deputy Chief of the Criminal Division, with prior service as Counselor to the Criminal Division and as Chief and Deputy Chief of the General Crimes Section. Her prior experience includes five years in private practice and three years working for the New York City Law Department.
Due to the reflexive obstruction and slow-walking of judicial nominees by Senate Republicans, Brodie will have waited 145 days from the time she was unanimously reported out of the Senate Judiciary Committee on an unopposed voice vote for the full Senate to take action on her confirmation. Meanwhile, the people of the Eastern District of New York will have gone 329 days waiting for a vacant seat to be occupied by a judge who will hear their cases as they seek justice in federal court.
For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Project webpage.
Two judicial nominees in West Virginia have fallen victim to the knee-jerk obstruction of a senator from thousands of miles away.
In an op-ed for the Charleston Gazette, AFJ President Nan Aron takes a look at the nominees and the senator standing in their way:
I’m willing to bet that people in West Virginia, like most Americans, have never heard of Mike Lee. He’s the junior U.S. Senator from Utah, and has been in office for all of two years. Yet, he has decided all by himself that West Virginia can’t have new federal judges.
He’s mad at President Obama, so he’s throwing a legislative fit and has vowed to block all of the president’s appointments to the federal courts, including two from West Virginia…
President Obama, working closely with Senators Jay Rockefeller and Joe Manchin, has appointed Gina Groh from Charles Town to fill a seat on the U.S. District Court, and Stephanie Dawn Thacker from Charleston to the U.S. Court of Appeals for the Fourth Circuit. These are highly qualified individuals with impeccable records and are fully representative of West Virginia values. They have bipartisan support and were unanimously approved by the Senate Judiciary Committee.
Click here to read the rest of Nan’s column.
This week saw significant action on the judicial nominations front. Boiling what took place down to the basic numbers, there were:
4 new nominations, bringing the number of pending nominees to 42
4 nominees who had hearings before the Senate Judiciary Committee: 1 Circuit Court nominee and 3 District Court nominees
4 nominees reported out of Committee to the Senate floor, bringing the number of nominees awaiting their final confirmation votes to 20
2 nominees confirmed: Adalberto José Jordán to the 11th Circuit Court of Appeals and Jesse M. Furman to the United States District Court for the Southern District of New York
The week comes to a close with:
103 total judicial vacancies, including 32 judicial emergency vacancies.
85 current vacancies; 18 future vacancies.
17 circuit court vacancies; 86 district court vacancies.
42 pending nominees; 61 vacancies without nominees.
22 nominees pending in committee; 20 pending in the Senate.
Thursday evening, President Obama sent four new names to the Senate to fill judicial vacancies.
He nominated Jill A. Pryor to a seat on the 11th Circuit Court of Appeals. A graduate of the College of William and Mary and of Yale Law School, and a former clerk for 11th Circuit Judge J.L. Edmondson, Pryor is currently a partner at the law firm of Bondurant, Mixson & Elmore, LLP, in Atlanta, Georgia. If confirmed, she will be the fourth woman to serve on the Court of Appeals for the 11th Circuit. The seat to which Pryor has been nominated has been vacant since August 2010 and has been declared a “judicial emergency” by the Administrative Office of the U.S. Courts.
Nominated to United States District Court seats were Judge Elissa Cadish to the District of Nevada, Judge Paul William Grimm to the District of Maryland, and Judge Mark E. Walker to the Northern District of Florida.
Judge Cadish, who currently serves as a district court judge on the 8th Judicial District Court of Nevada, is a graduate of the University of Pennsylvania and of the University of Virginia School of Law. Following law school, she clerked for Judge Philip Pro of the District of Nevada; it is his seat, also an emergency vacancy, that she will fill if confirmed.
Judge Grimm, who has been nominated to fill a future vacancy that will open up when incumbent judge Benson Legg takes senior status in June, is a United States Magistrate Judge for the District of Maryland and, since 2006, has served as the Chief United States Magistrate Judge. A former member of the Judge Advocate General’s Corps with the United States Army, Grimm received his B.A. from the University of California at Davis and his J.D. from the University of New Mexico School of Law.
Judge Walker is currently a Florida Circuit Judge in Tallahassee. In addition to a decade in private practice, he served as an Assistant Public Defender for Florida’s Second Judicial Circuit from 1997-1999 and clerked for a Florida state court judge, a United States District Court Judge in the Northern District of Florida, and a judge on the 11th Circuit Court of Appeals. He received both his B.A. and his J.D. from the University of Florida.
For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Project webpage.
This morning the Senate Judiciary Committee reported four United States District Court nominees to the Senate floor, where they now await their final confirmation votes.
The nominations of John Lee to the Northern District of Illinois, John Tharp, Jr. to the Northern District of Illinois, George Russell III to the District of Maryland, and Kristine Baker to the Eastern District of Arkansas were reported out on a voice vote with overwhelming bipartisan support from the committee members. Only Senator Mike Lee (R-UT) — who has pledged knee-jerk opposition to every single nominee — opposed the nominations. Ranking Member Charles Grassley (R-IA), the only Republican in attendance, announced that Senator Lee opposed the nominees “for reasons unrelated to the qualifications of the candidates,” voting no as a means of expressing an opinion on an unrelated matter.
Three of the four vacancies these nominees will fill vacancies that the Administrative Office of the U. S. Courts has declared to be “judicial emergencies.”
As has become usual practice for Republicans during the Obama presidency, Senator Grassley invoked a committee rule to delay consideration of Andrew Hurwitz for the Ninth Circuit Court of Appeals until the next committee meeting. Since the Senate will be in recess next week, it will be at least two weeks before action can be taken to move his nomination forward to the full Senate. The vacancy Hurwitz has been nominated to fill is also a judicial emergency.
Earlier this week, the Judiciary Committee held hearings on four nominees: Patty Shwartz to a seat on the Third Circuit Court of Appeals; Mary Lewis to a seat in the District of South Carolina; Jeffrey Helmick to a seat in the Northern District of Ohio, and Timothy Hillman to a seat in the District of Massachusetts.
Judge Adalberto Jordán, nominee to sit on the 11th Circuit Court of Appeals, is finally due to receive his Senate confirmation vote at noon today. The 11th Circuit covers the states of Florida, Georgia, Mississippi, and Alabama.
If confirmed, Jordán will be the first Cuban-born American to sit on the 11th Circuit Court of Appeals.
Judge Jordán was nominated on August 2, 2011 to fill the 11th Circuit seat left vacant after Judge Susan H. Black took senior status in February. A sitting federal judge for the Southern District of Florida, Jordán was selected and nominated by President Obama with bipartisan support from both Senators Bill Nelson (D-FL) and Marco Rubio (R-FL).
The Senate Judiciary Committee held a hearing on his nomination on September 20, 2011. On October 13, 2011, he was reported out of the committee to the Senate floor without opposition.
Due to Republican delays of all of President Obama’s judicial nominees, no further action was taken on Jordán’s nomination last year.
With across-the-board obstruction still hampering Senate procedure, Senate Majority Leader Reid (D-NV) was forced to file cloture on Jordán’s nomination. A Republican filibuster was broken on Monday by an overwhelming vote of 89-5.
Despite the lopsided vote and continued absence of any opposition to Judge Jordán’s qualifications or judicial philosophy, Senator Rand Paul (R-KY) insisted on invoking a Senate rule to delay the confirmation vote for an additional 30 hours, further obstructing an extremely qualified and broadly supported nominee from receiving his vote and being able to assume his seat on the bench.
Statistics on Judge Jordán’s Nomination
356: Days the seat has been vacant
198: Total days since Judge Jordán was first nominated to fill the 11th Circuit seat
126: Days Judge Jordán has waited for a confirmation vote since being unanimously reported out of committee
The Senate confirmed Judge Jordan by an overwhelming 94-5 vote.
The Senate today confirmed Judge Cathy Ann Bencivengo to a seat on the United States District Court for the Southern District of California this afternoon by a vote of 90 to 6.Judge Bencivengo, who served as a United States Magistrate Judge in San Diego, was nominated to the seat on May 11, 2011. On October 6, 2011, the Senate Judiciary Committee reported her nomination to the full Senate on a unanimous voice vote.Judge Bencivengo waited 127 days for the full Senate to consider her nomination; 275 days have passed since she was nominated to fill the seat which has been designated a judicial emergency vacancy by the Administrative Office of the U.S. Courts. The seat has been vacant for 614 days.Today’s vote is only the second Senate confirmation vote of 2012 on judicial nominees, despite the fact that all but two of the 18 nominees awaiting final votes were forwarded out of committee with unanimous or overwhelming bipartisan support. Nine pending nominees are nominated to fill emergency vacancies.For the most up-to-date information on judicial vacancies and nominations, see the Alliance for Justice Judicial Selection Project webpage.
Alliance for Justice recently released a report on the state of the judiciary during the first three years of the Obama administration. In the report, we examined the historic obstruction of President Obama’s nominees by Senate Republicans.
The Senate has confirmed far fewer nominees at this point in President Obama’s first term than it had confirmed for his two predecessors in office. Specifically, he trails President Bush by 47 confirmations and President Clinton by 56 confirmations.
President Bush and President Clinton had approximately 200 confirmed nominees at the end of their first terms, and had approximately 70 more nominees confirmed than Obama had at the end of three years. In order for President Obama to match President Bush’s confirmations, over 70 nominees would need to be confirmed this year.
In addition to confirming fewer of President Obama’s nominees than his predecessors, the Senate has also confirmed President Obama’s nominees at a lower rate. This trend is particularly notable for district court nominees, where Obama badly trails both Presidents Bush and Clinton.
For more information on the pace and obstruction of Obama’s judicial nominees, download our latest report, “The State of the Judiciary: Judicial Nominations During the First Three Years of the Obama Presidency.”
The Senate Judiciary Committee is scheduled to consider 4 District Court nominees today:
- Kristine Baker (Eastern District of Arkansas)
- John Lee (Northern District of Illinois)
- John Tharp, Jr. (Northern District of Illinois)
- George Russell (District of Maryland)
During the Obama presidency, it has been the habit of Republican senators on the judiciary committee to automatically delay every first-time consideration of nominees by one week, so it is likely that the committee will not be permitted to hold votes on these four nominees today.
Lee, Tharp, and Russell have all been nominated to seats that are considered to be judicial emergencies.
With the resignation of United States District Court Judge Richard Holwell (SD NY) this week, there are now 106 current and future vacancies in the federal court system, 33 of which are considered judicial emergencies.
Nominees have been named for 41 of those vacancies. Nineteen of these seats could be filled immediately if the Senate would agree to hold simple up or down votes on the nominees who have been voted out of the Senate Judiciary Committee—17 of them either unanimously or with overwhelming bipartisan support.
President Obama yesterday nominated Stephanie Marie Rose to the United States District Court for the Southern District of Iowa, and Michael Shea to the United States District Court of Connecticut.
Ms. Rose is currently the United States Attorney for the Northern District of Iowa; she has been appointed to fill a seat that will become vacant in July when incumbent Judge Robert W. Pratt takes senior status. Mr. Shea is in private practice at Day Pitney LLP in Hartford, CT; he has been appointed to fill the seat vacated on November 28, 2011 when Judge Christopher Droney, who previously held the seat, was confirmed to the Second Circuit.
With these nominations, there are now 41 nominees pending for the 105 current and future vacancies in the federal judiciary. For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.
Alliance for Justice recently released a report on the state of the judiciary during the first three years of the Obama administration. In addition to vacancy, nomination, and confirmation rates, we examined demographic and background information on each of Obama’s nominees.
The average age of President Obama’s appointees — 52.0 years old — is considerably higher than the average age of any of the last three Republican presidents’ confirmed judges. The age discrepancy is particularly glaring for circuit court appointees, who have been, on average, 4-6 years older than Republican presidents’ appointees. Republican presidents have shown no hesitancy in nominating people under 50 to circuit court seats, and in fact placed a premium on selecting young nominees.
If you examine the age distribution of Obama’s nominees, it is apparent that they skew marginally toard the upper 50s, raising his average above his predecessors.
Click to enlarge
For more information on the demographic and professional backgrounds of Obama’s judicial nominees, download our latest report, “The State of the Judiciary: Judicial Nominations During the First Three Years of the Obama Presidency.”
This morning the Senate Judiciary Committee reported 9th Circuit Court of Appeals nominee Paul Watford to the Senate floor in a vote of 10-6 along party lines, with two Republican senators (Jon Kyl and Lindsey Graham) voting “Present.”
California Democratic Senator Dianne Feinstein gave a statement in support of Mr. Watford, praising his legal record and highlighting his bipartisan support. Watford’s nomination is supported by Jeremy Rosen, head of the California Branch of the Federalist Society, conservative Chief Justice of the 9th Circuit Alex Kozinksi, and the CEOs of Verizon, Mattel, and Google. Although several Republican senators voted against Watford, none of them spoke against his nomination at the meeting.
The 9th Circuit Court of Appeals is currently faced with four judicial vacancies and a caseload of 557 cases per judge (.pdf download), more cases than any other circuit. Each vacancy in the 9th Circuit has been declared a judicial emergency.
** UPDATE: THIS ALERT IS NO LONGER ACTIVE **
With America’s judicial vacancy crisis growing worse by the day, President Obama highlighted the sorry state of the confirmation process during his State of the Union address.
Now you can join him in calling on the Senate to relieve the pressure on our courts caused by ballooning caseloads and judicial emergencies.
Washington, D.C., January 24, 2012—Alliance for Justice President Nan Aron issued the following statement about President Barack Obama’s call for action on judicial nominations during the State of the Union address:
With the nation’s federal courts in crisis, and with one in nine judgeships vacant, we applaud President Obama for using tonight’s State of the Union address to highlight the need for urgent Senate action on his judicial nominations. Relentless, unprecedented obstruction by Republicans threatens to create the almost unimaginable possibility that by the end of the President’s first term the overburdened federal courts may have more vacancies than when his presidency began. We believe the place for the Senate to start is with immediate votes for the 18 nominees currently awaiting final action, but then to work with the President to restore the federal court system to full strength by the end of this year. We urge the Senate to heed the President’s call for immediate action so that the state of the union can once again be characterized by an effective and fully staffed system of justice for all Americans.
The Senate last night confirmed Judge John Gerrard to be a United States District Court judge for the District of Nebraska. Judge Gerrard was confirmed by a bipartisan vote of 74-16. The Senate’s action leaves 18 other judicial nominees waiting on the floor for their confirmation votes, 17 of whom were reported out of committee either unanimously or with strong bipartisan support.
For the most accurate, up-to-date information on the judicial selection process, visit AFJ’s Judicial Selection page.
** UPDATE: THIS ALERT IS NO LONGER ACTIVE **
Thanks to AFJ members, more than 33,000 messages were sent to Capitol Hill asking that the Senate hold final confirmation votes on the 21 judicial nominees who have been cleared by the Judiciary Committee. These urgently needed and well-qualified nominees are ready to serve in some of this nation’s most overworked courtrooms, if only the Senate would schedule a simple yes-or-no vote.
But the Senate left town without finishing its business. According to The Hill newspaper, here’s what happened over the weekend:
“Senate Republican Leader Mitch McConnell (R-Ky.) on Saturday afternoon blocked more than 50 judicial and executive branch nominees, demanding assurances that President Obama not make recess appointments during Christmas break... Republicans are wary of Obama appointing a director to the new agency tasked with implementing Wall Street reform during the congressional recess.“
With America’s judicial vacancy crisis growing worse by the day, Senator McConnell blocked votes in order to protect the big corporations that caused our economic crisis.
Here’s what we’re going to do about it. Remember those 33,000 emails that have already been sent to Capitol Hill?
We want Senator McConnell to get just as many emails from everyday Americans who are fed up with the games, fed up with the gridlock, and fed up with McConnell’s willingness to use our judicial system as a hostage in his political schemes. Let’s all remind Senator McConnell that fair and functioning courts are vital to a healthy democracy.
U.S. Senate Takes Holiday Break, Leaving a Lump of Coal
in the Stocking of America’s Federal Courts
Washington, D.C., December 20, 2011—Once again, the United States Senate has left town for a holiday without fulfilling its obligation to fully staff the federal courts and ensure that justice is available to all Americans. With 100 judicial vacancies in the federal court system, Senate Republicans continued their widely condemned tactics of obstruction and endless delay, and prevented final consideration of 21 nominees who have been cleared by the Senate Judiciary Committee, in most cases with no opposition, and who simply need a final yes-or-no vote to take their seats on the seriously understaffed federal bench.
Sadly, 2011 will end in the same way it began, with one in nine federal judgeships unfilled and Republican promises to restore the nominations process to fairness and rationality in tatters. When the Senate returns in January it will find 37 of the President’s nominees in the nominations pipeline, either in committee or on the floor, and it will have an opportunity to both restore faith in the constitutional nominations process and to bring the woefully understaffed federal courts back to health.
Alliance for Justice President Nan Aron called on the Senate to mend its ways in the coming year, saying, “All Americans should be saddened, if not infuriated, by the endless political games being played with our federal court system. There seems to be no limit to the depths to which Republican senators will sink to appease their most extreme constituencies. Deals for action are cut by the leadership and then broken under pressure from hyper-partisan ideologues. The president’s nominees, all distinguished, highly qualified men and women, are treated with disrespect and stuck in legislative limbo for months on end. The courts are left without enough judges to do their work. Senate traditions are trashed. National polls showing support for Congress at record lows prove that the American people are tired of this kind of gridlock and gamesmanship. Obviously, we have run out of time for action this year, but for the sake of the nation, 2012 must tell a different story. Starting in January, willful obstruction must end and the confirmation process must be allowed to proceed in a rational and constructive way.”
Yesterday afternoon the Senate confirmed Morgan Christen to the United States Ninth Circuit Court of Appeals by a bipartisan vote of 95-3, with only Senators Jim DeMint, Rand Paul, and David Vitter voting no. Once sworn in, Christen will be the first Alaksan woman to serve on the Ninth Circuit.
President Obama nominated Christen to the seat on May 18, 2011; on September 8 she was reported out of the Senate Judiciary Committee by a unanimous voice vote. From the date of her nomination, Christen waited 212 days to be confirmed to the seat, which has been labeled a judicial emergency by the Administrative Office of the U.S. Courts.
The Senate’s action leaves 21 other judicial nominees waiting on the floor for their confirmation votes, 19 of whom were reported out of committee either unanimously or with strong bipartisan support.
For the most accurate, up-to-date information on the judicial selection process, visit AFJ’s Judicial Selection page.
The Senate Judiciary Committee held a confirmation hearing for Paul Watford to the United States Circuit Court for the Ninth Circuit. Senator Whitehouse (D-RI) chaired the hearing, opening the proceedings by noting the numerous judicial vacancies in the Ninth Circuit and quoting a recent letter from the circuit’s Chief Judge Alex Kozinski who said, “[W]e fear that the public will suffer unless our vacancies are filled very promptly.” Also attending the hearing were Senator Feinstein (D-CA), who introduced the nominee, and Senator Grassley (R-IA), the ranking Republican member. Senator Whitehouse remarked at its conclusion that the hearing was notably uneventful.
Watford was nominated to the seat on October 17, 2011. If confirmed, he will be the fourth African American to serve on the Ninth Circuit, and just one of two active African American judges on the 29-member court. There are five vacancies on the Court of Appeals for the Ninth Circuit—four current vacancies, all of them deemed judicial emergencies by the Administrative Office of the U.S. Courts—and one future vacancy. For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s Judicial Selection page.
Washington, D.C., December 6, 2011—Alliance for Justice President Nan Aron issued the following statement on the failure to end the Republican filibuster of the nomination of Caitlin Halligan to a seat on the U.S. Court of Appeals for the D.C. Circuit:
Today’s vote by Republicans to filibuster the nomination of Caitlin Halligan has shattered any pretense that the judicial confirmation process is being conducted in a rational or honest manner. Ms. Halligan’s record of achievement in public service and private practice is impeccable and there is no conceivable justification for denying her a final vote. The notion advanced by her opponents that she is somehow out of the mainstream of legal thought or holds extreme views is ludicrous and reflects a breathtaking level of dishonesty and hypocrisy. Today’s vote, combined with a three-year record of unrelenting obstruction, demonstrates that Senate Republicans have abandoned fairness and responsibility and are forcing the woefully understaffed federal judiciary to pay the price for their increasingly shrill and destructive partisan games. It is clear beyond any doubt that the 2005 agreement forbidding filibusters except under “extraordinary circumstances” is now dead and that Republicans have broken their promise to the American people to deal with judicial nominations in a fair and principled way. Today’s vote is a tragedy for the country, for the judiciary, for Senate tradition, and for Caitlin Halligan, who has been unjustly denied an opportunity to serve our nation.* * *
For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s Judicial Selection page.
Last night, the Senate confirmed the following to be United States District Court judges: Edgardo Ramos in the Southern District of New York; Andrew L. Carter, Jr. in the Southern District of New York; James Rodney Gilstrap in the Eastern District of Texas; and Dana L. Christensen in the District of Montana.
Judge Ramos was confirmed by a bipartisan vote of 89-0. The other three judges were confirmed by unanimous voice vote.
It has taken an average of 205 days for the four nominees to move through the Senate confirmation process, with Judge Gilstrap waiting 201 days to be confirmed to fill his judicial emergency seat in Texas.
The Senate’s action leaves 21 other judicial nominees waiting on the floor for their confirmation votes, 19 of whom were reported out of committee either unanimously or with strong bipartisan support.
Tonight, the Senate will finally hold votes on four long-pending judicial nominees: Edgardo Ramos, James Gilstrap, Andrew Carter, and Dana Christensen, all of whom have been waiting more than 200 days for their votes. And tomorrow at noon, there will be a vote to break a Republican filibuster on the nomination of Caitlin Halligan, who has been waiting over 430 days for her vote.
The filibuster of Halligan’s nomination has drawn intense criticism from legal scholars who point to her distinguished record and “unanimously well-qualified” rating from the American Bar Association. But instead of voting on the merits of her nomination, partisan obstruction in the Senate has led to a filibuster, which may keep her from even getting a final yes-or-no vote.
Here are the shocking figures:
- 25 pending nominees
- 23 with very strong bipartisan support
- 21 unopposed in committee
- 10 to fill judicial emergencies
- And if votes were held today on all nominees, their average wait time would be 177 days
Send a message to your senators and to Minority Leader Mitch McConnell and Majority Leader Harry Reid — tell them to end the backlog and hold confirmation votes on all pending nominees, including Caitlin Halligan!
UPDATE 12/5, 6:07 p.m.: The Senate has just voted to confirm Edgardo Ramos, James Gilstrap, Andrew Carter, and Dana Christensen. That’s great news, but does not end the Senate’s obligation to the American people or to the 21 nominees still waiting on the Senate floor.
The Senate has confirmed Judge Christopher Droney to the United States Second Circuit Court of Appeals by a bipartisan vote of 88-0.
President Obama nominated Droney to the seat on May 4, 2011; on July 21 he was reported out of the Senate Judiciary Committee by a unanimous voice vote. From the date of his nomination, he has been waiting 209 days to be confirmed to fill his seat, which has been labeled a judicial emergency by the Administrative Office of the U.S. Courts.
The Senate’s action leaves 22 other judicial nominees waiting on the floor for their confirmation votes, 20 of whom were reported out of committee either unanimously or with strong bipartisan support.
There are currently 23 nominees awaiting final votes in the Senate. They’ve had their hearings, the Judiciary Committee has deliberated, and they were approved by the committee — most without any opposition at all.
Those nominees have put their lives on hold while the Senate drags its feet. Caitlin Halligan has been waiting over 400 days for a vote. Some nominees, like Christopher Droney of Connecticut, have been nominated to seats that are considered “judicial emergencies” — and Droney’s nomination to the Second Circuit has been pending nearly 200 days.
It’s time for the Senate to do its job and hold votes on these 23 nominees. Click here to send a message to your Senators and the Senate leaders. Tell them that the obstruction and partisan games must end.
Here are the shocking figures:
- 23 pending nominees
- 21 with very strong bipartisan support
- 19 unopposed in committee
- 8 to fill judicial emergencies
- And if votes were held today, the nominees’ average wait time would be 184 days
Knee-jerk obstruction in the Senate and the slow pace of confirmation votes threaten to make the judicial confirmation rate during President Obama’s first term lower than for any president in modern history.
The Senate has confirmed two women to be United States District Court judges. Sharon Gleason was confirmed to the District Court of Alaska by a bipartisan vote of 87-8 and Yvonne Gonzales Rogers to the Northern District of California by a bipartisan vote of 89-6.
Gleason is the first woman to serve as a federal district judge in Alaska. Nominated to the seat on April 6, 2011, she has waited 224 days to be confirmed. Rogers has waited 196 days from nomination to confirmation.
The Senate’s action leaves 45 judicial nominees pending in the Senate. Twenty-three of these nominees are waiting on the floor for their confirmation votes; 21 of those 23 were reported out of committee either unanimously or with strong bipartisan support.
** UPDATE: THIS ALERT IS NO LONGER ACTIVE **
With each passing day, America’s judicial vacancy crisis grows worse.
There are currently 23 nominees awaiting final votes in the Senate. They’ve had their hearings, the Judiciary Committee has deliberated, and they were approved by the committee — most without any opposition at all.
Those nominees have put their lives on hold while the Senate drags its feet. Caitlin Halligan has been waiting over 400 days for a vote. Some nominees, like Christopher Droney of Connecticut, have been nominated to seats that are considered “judicial emergencies” — and Droney’s nomination to the Second Circuit has been pending nearly 200 days.
It’s time for the Senate to do its job and hold votes on these 23 nominees. Send a message to your Senators and the Senate leaders. Tell them that the obstruction and partisan games must end.
Here are the shocking figures:
- 23 pending nominees
- 21 with very strong bipartisan support
- 19 unopposed in committee
- 8 to fill judicial emergencies
- And if votes were held today, the nominees’ average wait time would be 184 days
Knee-jerk obstruction in the Senate and the slow pace of confirmation votes threaten to make the judicial confirmation rate during President Obama’s first term lower than for any president in modern history.
Send a message to your senators and to Minority Leader Mitch McConnell and Majority Leader Harry Reid — tell them to end the backlog and call for a vote on all pending nominees!
Today, the Senate confirmed Evan J. Wallach to the United States Federal Circuit Court of Appeals by a bipartisan vote of 99-0. President Obama nominated Wallach to the seat on July 28, 2011; on October 6 he was reported out of the Senate Judiciary Committee by a unanimous voice vote.
Wallach’s confirmation is an example of how timely the confirmation process can be when reflexive obstruction is set aside; the Senate took action on Judge Wallach’s nomination just 34 days after his name reached the floor.
The Senate’s action leaves 24 other judicial nominees waiting on the floor for their confirmation votes, 21 of whom were reported out of committee either unanimously or with strong bipartisan support.
For the most accurate, up-to-date information on the judicial selection process, visit our Judicial Selection page.
This morning the Senate Judiciary Committee reported five judicial nominees to the Senate floor. Four nominees were reported on a unanimous voice vote: Stephanie Dawn Thacker, Michael Walker Fitzgerald, Ronnie Abrams, and Rudolph Contreras, nominees to the Fourth Circuit, the Central District of California, the Southern District of New York, and the District of Columbia, respectively.
Miranda Du, nominee to the District of Nevada, was reported out on a 10-8 party-line vote.
Fitzgerald and Du have been appointed to vacant seats that have been designated as judicial emergencies by the Administrative Office of the U.S. Courts.
The committee also held over until its next meeting a vote on Susie Morgan, nominee to the Eastern District of Louisiana.
The Senate Judiciary Committee today held a hearing on the nomination of Judge Jacqueline Nguyen to the United States Ninth Circuit Court of Appeals. Nguyen was nominated to the Ninth Circuit by President Obama on September 22, 2011; she was appointed to her current seat on the U.S. District Court for the Central District of California by President Obama in July 2009, taking her place on the bench in December of that year when the Senate confirmed her with a unanimous vote of 97-0. Judge Nguyen, who was born in Dalat, Vietnam in 1965 and fled that country at the age of nine during the fall of Saigon, is the first Vietnamese American to serve on the federal bench. If confirmed to the Ninth Circuit, she will be the United States’ first Asian Pacific American woman to serve as a federal appellate court judge and one of only two Asian Pacific Americans actively serving in the nation’s federal Courts of Appeals.
Hearings were also held for Gregg Jeffrey Costa and David Campos Guaderrama, to be United States District Judges for the Southern District and the Western District of Texas, respectively.
All three seats are open due to vacancies that have been designated judicial emergencies by the Administrative Office of the U.S. Courts. The seat to which Nguyen is nominated has been vacant for 1,016 days since its creation on January 21, 2009. Costa and Guaderrama are being considered for seats vacant for hundreds of days–Costa’s for 510 days, Guaderrama’s for 980—since the prior occupants took senior status.
For the most up-to-date and comprehensive information on judicial nominations see our Judicial Selection Project page.
The Senate has confirmed Stephen A. Higginson to the United States Fifth Circuit Court of Appeals by a bipartisan vote of 88-0.
President Obama nominated Higginson to the seat on May 9, 2011; on July 14 he was reported out of the Senate Judiciary Committee by a unanimous voice vote and has been waiting 109 days to be confirmed to fill his seat, which has been labeled a judicial emergency by the Administrative Office of the U.S. Courts.
The Senate’s action leaves 22 other judicial nominees waiting on the floor for their confirmation votes, 21 of whom were reported out of committee either unanimously or with strong bipartisan support.
The Senate Judiciary Committee today held a hearing on the nomination of Susie Morgan to the United States District Court for the Eastern District of Louisiana. Senator Chris Coons (D-DE) presided over the hearing; also in attendance were ranking member Senator Chuck Grassley (R-IA) and Senator Mike Lee (R-UT). Morgan was nominated by President Obama on June 7, 2011 and has waited 135 days to have her hearing before the Committee.
For the most up-to-date and comprehensive information on judicial nominations see our Judicial Selection Project page.
The Senate voted to confirm three nominees to U.S. District Court seats today. Mark Raymond Hornak and Robert N. Scola, Jr. were confirmed by unanimous consent to seats in the Western District of Pennsylvania and the Southern District of Florida, respectively. Robert David Mariani was confirmed by a bipartisan vote of 82-17 to a seat in the Middle District of Pennsylvania.
Mariani, nominated on Dec. 1, 2010, has waited 323 days to be confirmed to fill his seat which has been declared a judicial emergency by the Administrative Office of the U.S. Courts. It has been 91 days since he was reported out of the Senate Judiciary Committee without opposition on July 21. Scola is also filling a judicial emergency vacancy; it has been 169 days since his nomination on May 4, 2011. Hornak, like Mariani, has waited 323 days for his unanimous confirmation by the Senate.
For the most accurate, up-to-date information on the judicial selection process, visit the Judicial Selection Project page.
Today, the Senate confirmed Catherine Bissoon to the United States District Court for the Western District of Pennsylvania by a bipartisan vote of 82-3. President Obama nominated Bissoon to the seat on November 17, 2010. It has been 335 days from her nomination to her confirmation by an overwhelming majority of senators.
The Senate took no action on 26 other judicial nominees currently pending on the Senate floor, 25 of whom were reported out of committee either unanimously or with strong bipartisan support and 9 of whom have been nominated to fill vacancies that are “judicial emergencies” as determined by the Administrative Office of the U.S. Courts.
For the most accurate, up-to-date information on the judicial selection process, visit the Judicial Selection Project page.
Today, the Senate confirmed Alison Nathan to the United States District Court for the Southern District of New York by a vote of 48-44; Susan O. Hickey to the United States District Court for the Western District of Arkansas by a bipartisan vote of 83-8; and Katherine B. Forrest to the United States District Court for the Southern District of New York by a unanimous voice vote.
The Senate took no action on 27 other judicial nominees currently pending on the Senate floor, 26 of whom were reported out of committee either unanimously or with strong bipartisan support and 9 of whom have been nominated to fill vacancies that are “judicial emergencies” as determined by the Administrative Office of the U.S. Courts. There are now 107 current and future vacancies in the federal judiciary—1 in 8 judgeships— and only 7 fewer than there were at the beginning of the current Congress.
With the confirmation of Alison Nathan, the number of life-tenured openly gay federal judges has increased to three; two of these were appointed by President Obama and one by President Clinton.
For the most accurate, up-to-date information on the judicial selection process, visit the Alliance’s Judicial Selection webpage.
Today the Senate Judiciary Committee voted five judicial nominees out of committee, moving them forward to the full Senate for confirmation, bringing the total number of nominees awaiting floor votes to 30.
Adalberto José Jordán, nominee to be United States Circuit Judge for the Eleventh Circuit, and three United States District Court nominees: Mary Elizabeth Phillips to the Western District of Missouri, Thomas Owen Rice to the Eastern District of Washington, and David Nuffer to the District of Utah were reported out on a unanimous, en banc voice vote. John M. Gerrard to the District of Nebraska, was reported out on a bipartisan voice vote, with only one senator voting no.
Both Jordán and Nuffer have been appointed to fill vacancies designated as “judicial emergencies” by the Administrative Office of the United States Courts. Currently there are 32 judicial emergency vacancies, with 20 persons nominated to fill the seats.
Responding to the strain being placed on our justice system by the lack of judges in the courts, the Committee also reported out S.1014, the Emergency Judicial Relief Act on a vote of 15-3, with Senators Grassley (R-IA), Sessions (R-AL), and Coburn (R-OK) voting no. The bill would establish ten new judgeships in parts of the country where courts are overloaded because the bench is woefully understaffed.
Holding swift votes on the 30 nominees pending on the Senate floor, all but 1 of whom came out of Committee with little or token opposition, is one way the Senate can take direct, immediate action to ease the burden on our judiciary and ensure that the American people have access to justice.
This evening the Senate confirmed Jane Triche-Milazzo to the Eastern District of Louisiana on a vote of 98-0. Judge Milazzo was nominated on March 16th, 2011. There are 25 other judicial nominees pending on the floor, all but one of whom were reported out of committee unanimously or with strong bipartisan support. Five more nominees are likely to be reported to the floor this Thursday.For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s website.
President Obama has nominated Judge Patty Shwartz to the United States Circuit Court of Appeals for the Third Circuit. Since 2003, she has served as a Magistrate Judge on the United States District Court for the District of New Jersey. She has taught as an adjunct professor of law at Fordham University School of Law since 2009.
Judge Shwartz graduated from Rutgers University in 1983 with highest honors and was named the Outstanding Woman Law Graduate of her class upon graduating from the University of Pennsylvania Law School in 1986. Her previous legal experience includes working as an associate at Pepper, Hamilton & Scheetz (now Pepper Hamilton LLP); serving as a law clerk to the Honorable Harold A. Ackerman of the United States District Court for the District of New Jersey from 1987 to 1989; and working in a variety of positions in the United States Attorney’s Office for the District of New Jersey from 1989-2002.
With this nomination, there are now 53 nominees pending for the 109 current and future vacancies in the federal judiciary. For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.
Today the Senate Judiciary Committee voted five judicial nominees out of committee in a unanimous, en banc vote, moving them forward to the full Senate for confirmation. The nominees are Evan Wallach, nominated to be a United States Circuit Judge for the Federal Circuit, and four United States District Judge nominees: Dana Christensen to the District of Montana, Cathy Bencivengo to the Southern District of California, Gina Marie Groh to the Northern District of West Virginia, and Margo Brodie to the Eastern District of New York. They now join 21 other pending nominees awaiting confirmation by the Senate.
Consideration of all five had been “held over” by Republicans at the last meeting of the Committee. Holding over nominees, even when there is no opposition to their appointment, has been a consistent tactic by Republican senators seeking to slow down the judicial confirmation process. This tactic was continued at the Committee today, with Republican ranking member Sen. Grassley (R-IA) automatically holding over the nominations of Adalberto José Jordán to the Eleventh Circuit Court of Appeals and District Judge nominees John M. Gerrard, Mary Elizabeth Phillips, Thomas Owen Rice, and David Nuffer to the District of Nebraska, the Western District of Missouri, the Eastern District of Washington, and the District of Utah, respectively.
Both Jordán and Nuffer have been appointed to fill vacancies designated as “judicial emergencies” by the Administrative Office of the United States Courts. Also automatically held over was consideration of S.1014, Emergency Judicial Relief Act, a bipartisan bill that would establish ten new judgeships in parts of the country where courts are overloaded because the bench is woefully understaffed.
Rather than playing delaying games in an attempt to keep President Obama’s nominees off the bench, Republicans in the Senate should be moving with all speed to ensure that these vacancies are filled so that people seeking justice in the courts of our nation can be heard.
On October 6, the Senate Judiciary Committee will consider S.1014, The Emergency Judicial Relief Act of 2011.
The bill, introduced by Senator Dianne Feinstein (D-CA) in May, would create 10 new district court judgeships:
- 2 for the District of Arizona
- 4 for the Eastern District of California
- 1 for the District of Minnesota
- 1 for the Southern District of Texas
- 2 for the Western District of Texas
The bill would also convert existing temporary judgeships in the District of Arizona and the Central District of California into permanent judgeships. The incumbents in the current temporary judgeships would remain in the converted seats, and the president would name nominees to fill the new positions.
The bill has bipartisan support from co-sponsors Senator Barbra Boxer (D-CA); Senator John Cornyn (R-TX); Senator Al Franken (D-MN); Senator Kay Bailey Hutchison (R-TX); Senator Amy Klobuchar (D-MN); Senator John Kyl (R-AZ); and Senator John McCain (R-AZ).
Also on October 6, the committee will vote on five judicial nominees: Evan Wallach to the United States Circuit Court for the Federal Circuit, and four United States District Court nominees (Dana Christensen, District of Montana; Cathy Bencivengo, Southern District of California; Gina Marie Groh, Northern District of West Virginia; Margo Brodie, Eastern District of New York).
All five were automatically held over by the Republican members of the Judiciary Committee at its last Executive Business meeting, rather than being considered on the day their nominations were first brought to the committee.
The creation of new federal judicial seats and the confirmation of nominees to fill them will help to ease the crushing case-loads that are currently overwhelming inadequately staffed federal courts and preventing people from gaining access to justice.
For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.
Senate Majority Leader Harry Reid (D-NV) announced late last night that the Senate will vote on six judicial nominations on Monday, October 3.
District Court nominees Nanette Jolivette Brown (Eastern District of Louisiana), Nancy Torresen (District of Maine), William Francis Kuntz, II (Eastern District of New York), Marina Garcia Marmolejo (Southern District of Texas), and Jennifer Guerin Zipps (District of Arizona) are scheduled to be confirmed by unanimous consent.
A roll call vote will be held to vote on the confirmation of Henry Floyd to the United States Court of Appeals for the Fourth Circuit. The seats that Floyd, Kuntz, Marmolejo, and Zipps will fill if confirmed have all been deemed judicial emergencies by the Administrative Office of the United States Courts.
Senator Reid also secured unanimous consent to vote on four additional district court nominees at a time to be determined by the majority leader, after consultation with the Republican leader, sometime after October 11: Jane Margaret Triche-Milazzo (Eastern District of Louisiana), Alison Nathan (Southern District of New York), Susan Owens Hickey (Western District of Arkansas), and Katherine Forrest (Southern District of New York).
All of these nominees were sent to the Senate floor by the Senate Judiciary Committee with little to no opposition; eight were reported out on voice votes and two by strong, bipartisan roll call votes (Nathan, 14-4; Hickey, 15-3). Nonetheless, Republican stall tactics to keep President Obama’s nominees off the bench have dragged out the process of filling these empty judicial seats.
The average time from nomination to confirmation for the six nominees to be considered on October 3 will be 238 days; Marina Marmolejo, whose seat is a judicial emergency, will have waited 433 days to be confirmed to take her place on the federal bench.
For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.
President Obama has nominated Judge Jacqueline H. Nguyen to the United States Circuit Court of Appeals for the Ninth Circuit, and Judge Brian C. Wimes to the United States District Court for the Eastern and Western District of Missouri. This Circuit Court seat is one of 35 federal vacancies to be designated a judicial emergency by the Administrative Office of the United States Courts.
Judge Nguyen is currently a United States District Judge in the Central District of California in Los Angeles and is the first Vietnamese American to serve on the federal bench. If confirmed, she would be the United States’ first Asian Pacific American woman to serve as a federal appellate court judge and one of only two Asian Pacific Americans actively serving in the nation’s federal Courts of Appeals.
Judge Wimes has served since 2007 on the 16th Judicial Circuit Court of Missouri. When appointed to the seat, he was the only African-American judge serving in Jackson County.
With these nominations, there are now 58 nominees pending for the 115 vacancies in the federal judiciary. For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.
On Tuesday, the Senate confirmed John Andrew Ross to the United States District Court for the Eastern District of Missouri by unanimous consent and Timothy M. Cain to the United States District Court for the District of South Carolina by a vote of 99-0. The vacancies they will fill have been designated judicial emergencies by the Administrative Office of the U.S. Courts.
Despite the emergency status of the seats and the unanimous affirmation of the nominees by the Senate, it has taken 294 days from the date of his nomination to last night’s vote for Ross to be confirmed, and 217 days for Cain.
The Senate took no action on 27 other judicial nominees currently pending on the Senate floor, 26 of whom were reported out of committee either unanimously or with strong bipartisan support. There are now 112 current and future vacancies in the federal judiciary—1 in 7 judgeships—only 2 fewer than there were at the beginning of the current Congress.
The Senate Judiciary Committee today held hearings on the nominations of Adalberto José Jordán to the United States Court of Appeals for the Eleventh Circuit and of John M. Gerrard, Mary Elizabeth Phillips, Thomas Owen Rice, and David Nuffer to serve as United States District Judges in the District of Nebraska, the Western District of Missouri, the Eastern District of Washington, and the District of Utah, respectively.
If confirmed, Jordán and Nuffer will both be filling vacancies that have been deemed “judicial emergencies” by the Administrative Office of the U. S. Courts. During their testimony, both Nuffer and Gerrard spoke of the difficulties people are having accessing justice due to increasing court caseloads and insufficient personnel and other resources. Senator Amy Klobuchar (D-MN) presided over the hearings; also in attendance were committee members Senator Orrin Hatch (R-UT) and Senator Mike Lee (R-UT).
With 113 vacancies in our federal courts, 37 of them judicial emergencies, the Senate should move swiftly to take action to put these nominees on the federal bench.
For the most up-to-date and comprehensive information on judicial nominations, download the Alliance for Justice’s Judicial Selection Snapshot and The State of the Judiciary June–August 2011: Judicial Nominations in the 112th Congress.
Today the Senate Judiciary Committee voted four judicial nominees out of committee in a unanimous, en banc vote, moving them forward to the full Senate for confirmation. Consideration of all four had been “held over” last week by Republicans on the Judiciary Committee, even though one of the nominees, James Rodney Gilstrap, would be filling a vacancy on the federal bench of the Eastern District of Texas that has been named a “judicial emergency” by the Administrative Office of the U.S. Courts. Holding over nominees, even when there is no opposition to their appointment, has been a consistent tactic by Republican senators seeking to slow down the judicial confirmation process. The other three nominees who were advanced out of the committee are Edgardo Ramos, Andrew L. Carter, Jr., and Jesse M. Furman, all to seats in the Southern District of New York.
For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Snapshot and The State of the Judiciary June–August 2011: Judicial Nominations in the 112th Congress.
President Obama has nominated Stephanie Dawn Thacker to the United States Circuit Court for the Fourth Circuit and Gregg Jeffrey Costa to the United States District Court for the Southern District of Texas. Ms. Thacker would fill the seat left open by the death of Judge Michael, and Mr. Costa would fill a judicial emergency seat created when Judge Rainey took senior status. Ms. Thacker is currently a practicing attorney and adjunct professor of law specializing in complex litigation, environmental and toxic tort litigation, and criminal defense. From 1994-1999 she served as an Assistant United States Attorney, taking part in the first prosecution in the nation under the Violence Against Women Act. She worked for the Department of Justice at the Child Exploitation and Obscenity Section from 1999-2006, focusing on issues related to sex trafficking, sex tourism, child sexual exploitation and related matters. Mr. Costa has served as an Assistant United States Attorney in the Southern District of Texas since 2005. He clerked for Chief Justice William Rehnquist from 2001-2002 after serving for a year as a Bristow Fellow at the Office of the Solicitor General in the United States Department of Justice. Before entering law school, he was a school teacher in Mississippi through the Teach for America program.
With these nominations, there are now 57 nominees pending for the 113 vacancies in the federal judiciary. For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.
Refusing to accept responsibility for repeated Republican measures to halt judicial appointments, Senator Chuck Grassley (R-IA) continues to cast blame for the nation’s ongoing judicial deficits everywhere but on the shoulders of the GOP. Even after the White House issued an infographic that clearly shows Republican obstruction of judicial nominees, Senator Grassley has refused to back down from his claims. Grassley claims, for example, that President Obama’s circuit and district court nominees have waited, on average, less time to receive Senate Judiciary Committee hearings and be reported to the Senate floor than President Bush’s comparable nominees.
The problem with Senator Grassley’s numbers is that they miss key points. In the first two years of the Obama presidency, the Senate confirmed a smaller percentage of the president’s nominees – 58 percent – than any president in history. This inaction on nominations – inaction that is a direct result of reflexive and repeated delay tactics by Republicans – caused the number of judicial vacancies to nearly double over the two year period, going from 55 to 97. For further information, see AFJ’s special report, The State of the Judiciary: President Obama and the 111th Congress.
Today, there are 113 federal judicial vacancies. Despite Senator Grassley’s claims that Republicans in the 112th Congress are allowing nominations to move forward, that number is virtually the same as the day the Senate session began in January, when the number of empty seats in federal courtrooms was 114, leaving 1 in 7 federal judgeships vacant. Thirty-seven of these vacancies have been declared “judicial emergencies” by the Administrative Office of the U.S. Courts. Despite the severe judicial deficit in the courts, only 34 of the president’s 90 nominees have been confirmed this year, and the overall confirmation rate for the president’s judicial appointments stands at 62 percent, significantly less than the 74 percent confirmed by this point in President George W. Bush’s first term and the 84 percent during the first term of President Bill Clinton.
All but four of President Obama’s nominees have been automatically held over in committee, a partisan strategy that stretches out the period from nomination to confirmation by weeks or, when the Senate goes on vacation, months. Senate Judiciary Chairman Patrick Leahy (D-VT) notes that even candidates coming out of committee without any opposition are being left in limbo for months more as Senate Republicans employ all possible means of preventing floor votes on their appointments.
There are currently nineteen pending judicial nominations awaiting a final vote on the Senate floor. Half of them have been awaiting a vote for over two months, even though all but four were unanimously supported by the Judiciary Committee.
Getting judges on the bench is an end-sum game; until nominees are voted on by the Senate, they cannot take their places in the courtrooms and judicial system of the nation. What is needed is an end to partisan gamesmanship and full Senate action to fill vacancies on the bench so that everyday Americans can seek, and be granted, justice in our courts.
On Wednesday, the Senate Judiciary Committee held hearings on the nomination of Evan Wallach to the United States Court of Appeals for the Federal Circuit, and of Dana Christensen, Cathy Bencivengo, Gina Marie Groh, and Margo Brodie to serve as United States District Judges in the District of Montana, Southern District of California, Northern District of West Virginia, and Eastern District of New York, respectively. Senator Sheldon Whitehouse (D-RI) presided over the hearings; also in attendance were Senator Chuck Grassley (R-IA) and Senator Al Franken (D-MN).
Following a smooth hearing, the nominees were commended by both Senators Whitehouse and Grassley, with the latter noting that he did not see any reason why their confirmations should be opposed.
With 113 vacancies in our federal courts, 37 of them judicial emergencies, the Senate should move swiftly to take action to put these nominees on the federal bench. For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Snapshot and The State of the Judicary June–August 2011: Judicial Nominations in the 112th Congress.
Today, for the first time in the 112th Congress, the Republicans on the Senate Judiciary Committee allowed a judicial nominee to be reported to the floor without being “held over” until the next time the committee convenes. The practice of holding over nominees, especially those for whom there is no Republican opposition, is a way to delay the judicial confirmation process. Republican senators have engaged in this practice systematically for every nominee, even as judicial vacancies have reached crisis proportions, and regardless of whether the nominee would fill one of the dozens of seats the Administrative Office of the U.S. Courts has declared “judicial emergencies.”
Jennifer Guerin Zipps, a nominee to the United States District Court for the District of Arizona is the first nominee to receive this treatment by Senate Republicans. Ms. Zipps has been nominated to fill the seat that tragically became vacant when Chief Judge John Roll was among the six people killed in the January shooting that targeted Congresswoman Gabrielle Giffords (D-AZ). Certainly the suddenness and urgency of this vacancy is reason enough to move her nomination rapidly through the Senate, but another nomination considered today did not receive such conscientious treatment, even though the nominee would also fill a judicial emergency: James Rodney Gilstrap, nominee to the Eastern District of Texas.
If Republicans in the Senate cared about Americans receiving timely consideration of their cases in the federal courts, they would drop their practice of automatically holding over judicial nominees, and help address the ongoing judicial vacancy crisis.
This evening the Senate confirmed Bernice Donald to the Sixth Circuit Court of Appeals by a vote of 96-2, with Senators Vitter (R-LA) and DeMint (R-SC) voting no. Judge Donald was previously a United States District Judge in the Western District of Tennessee. She has been a federal judge for more than 20 years, and has almost 30 years of judicial experience. She was elected to her first judicial position as a judge in the criminal division of the Court of General Sessions in Shelby County in 1982, making her the first female African-American judge in Tennessee history. She also became the nation’s first female African-American bankruptcy judge in 1988.
Judge Donald is the first circuit court nominee to be confirmed in 4 months. There are now 19 nominees awaiting confirmation on the Senate floor.
For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.
The Senate’s slow pace when it comes to considering and confirming judicial nominations has been gaining more attention in recent months, as the judicial vacancy crisis becomes more and more apparent. Courts across the nation are suffering under enormous caseloads, and Americans seeking justice are being forced to wait longer and longer to have their day in court.
Republican obstruction in the last Congress left President Obama with the lowest percentage of approved judicial nominees at the end of his first two years of any President in American history.
The Washington Post noted this destructive trend in a hard-hitting editorial.
Yet the Senate has confirmed just 35 Obama judicial nominees this year — with only three for the courts of appeals. The responsibility for lingering vacancies now lies primarily with Capitol Hill.
What excuse is there to hold up confirmation for uncontroversial trial court nominees? Kathleen Williams, for example, had the support of her home-state senators — Democrat Bill Nelson and Republican Marco Rubio — and was designated to fill a judicial emergency vacancy on an overwhelmed court in the Southern District of Florida. Ms. Williams was one of the lucky four who finally earned confirmation this month from a unanimous Senate — more than a year after Mr. Obama originally nominated her.
There are 112 federal district and circuit court vacancies, and 56 pending nominees.
For more on the judicial vacancy crisis, and reports on nominees and confirmations, see Alliance for Justice’s Judicial Selection Project.
PRESS RELEASEALLIANCE FOR JUSTICE URGES FULL SCALE PUSH TO CONFIRM JUDICIAL NOMINATIONS WHEN CONGRESS RETURNS IN SEPTEMBER
Washington, D.C., August 4, 2011— When the United States Senate left town this week for its August recess, it left behind the unfinished business of fully staffing the federal courts. Twenty nominees to federal district and circuit courts of appeal were left stranded on the Senate floor, unable to get a final confirmation vote as Republicans continued their tactics of endless delay and unwavering obstruction. Even including the four nominees approved on Tuesday, Republican leadership has allowed votes on only 10 nominees to lifetime seats in the last 12 weeks.
Alliance for Justice President Nan Aron repeated her call for action to end the crisis that has left federal courts across the country understaffed and increasingly unable to serve the interests of justice. “This week, once again, Republicans in the Senate have proven that they are willing to use the federal courts as pawns in an increasingly destructive and irresponsible partisan game,” she said. “This has been going on since Day One of the Obama presidency and it has to stop. The president has done his part to increase the pace of nominations. The Senate Judiciary Committee has vetted and voted on nominees at a brisk and responsible pace. But Republican leaders bring the entire process to a screeching halt on the Senate floor. When Congress returns in September, the blockade must end and the process must be allowed to move forward before more damage is done.”
Aron also praised the statement made today by White House Counsel Kathryn Ruemmler highlighting the gender and racial diversity of President Obama’s appointments. “One of President Obama’s greatest achievements is the extraordinary progress he has made in bringing diversity to the federal bench,” Aron explained. “It’s striking, in fact, that half of the 20 nominees currently being blocked from receiving final Senate votes are women. The old glass ceiling has apparently been replaced by a brick wall of intransigence and political gamesmanship.”
The plain unvarnished facts of the judicial crisis serve as evidence of the complete breakdown of the confirmation process and an unprecedented and reckless abandonment of constitutional responsibilities by Senate Republicans:
• In January, at the beginning of the 112th Congress, there were 114 vacant or imminently vacant judgeships in the federal judiciary – more than one in seven authorized judgeships.
• Today, the federal bench has 111 judgeships currently or imminently vacant, including 35 that are so serious that they are considered judicial emergencies by the Administrative Office of the U.S. Courts.
• This year, the Senate has confirmed about one nominee per week. This sluggish pace has been almost completely offset by the creation of approximately one new vacancy per week due to retirements or deaths.
• Overall, at this point in their first terms, Presidents Clinton and Bush had seen 152 and 144 of their federal district and circuit nominees confirmed, respectively. The Senate has only confirmed 93 of President Obama’s nominees.
• If the current confirmation pace holds there will be approximately the same number of judicial vacancies at the end of the year as there were at the beginning of the year.
• The Senate recessed without taking action on 20 nominees pending on the floor. Sixteen of these nominees were reported out of the Senate Judiciary Committee without opposition from Republicans, and three others were reported out with strong bipartisan support. Ten of the pending nominees would fill seats considered to be “judicial emergencies” by the Administrative Office of the U.S. Courts.* * *
Alliance for Justice is the leading provider of information on judicial nominations. A continuously updated statistical summary of the nominations process is available here: http://www.afj.org/judicial-selection/judicial-selection-snapshot.pdf.
Additional information is also available on the AFJ Website at http://www.afj.org/judicial-selection/.
This evening the Senate confirmed Sara Lynn Darrow to the United States District Court for the Central District of Illinois, Richard Brooke Jackson to the United States District Court for the District of Colorado, Kathleen M. Williams to the United States District Court for the Southern District of Florida, and Nelva Gonzales Ramos to the United States District Court for the Southern District of Texas, all by unanimous consent. The Senate also scheduled a confirmation vote for Bernice Bouie Donald, nominee to the United States Court of Appeal for the Sixth Circuit, on Tuesday, September 6th at 5:30pm, following the Senate’s August recess.The Senate took no action on 19 other judicial nominees currently pending on the Senate floor, 18 of whom were reported out of committee either unanimously or with strong bipartisan support. There are now 111 current and future vacancies in the federal judiciary—1 in 7 judgeships—only 3 fewer than there were at the beginning of the current Congress.For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.
This morning, at the request of committee Republicans, the Senate Judiciary Committee held over votes on five nominees: Morgan Christen, nominee to the United States Court of Appeal for the Ninth Circuit; Scott W. Skavdahl, nominee to the United States District Court for the District of Wyoming; Sharon L. Gleason, nominee to the United States District Court for the District of Alaska; Yvonne Gonzalez Rogers, nominee to the United States District Court for the Northern District of California; and Richard G. Andrews, nominee to the United States District Court for the District of Delaware. Those five nominees may be considered at the committee’s next business meeting.
Since President Obama took office, committee Republicans have held over votes on every one of his judicial nominees, regardless of qualification, in an effort to delay filling vacant judgeships.
The committee once again delayed a vote on the nomination of Steve Six to the United States Court of Appeal for the Tenth Circuit.
As a result of Republican obstructionism, there are now 114 vacancies in the federal judiciary. Twenty-five nominees are awaiting confirmation votes on the Senate floor, 23 of whom were reported out of committee either unanimously or with strong bipartisan support. Thirteen of these nominees would fill seats considered to be judicial emergencies by the administrative office of the U.S. Courts.
Senator McConnell should stop blocking votes on these nominees, and the Senate should confirm them without delay. Join Alliance for Justice in calling on McConnell and Majority Leader Harry Reid to schedule votes immediately.
This afternoon the Senate Judiciary committee held a hearing on the nominations of Edgardo Ramos, Andrew L. Carter, Jr., and Jesse M. Furman to the United States District Court for the Southern District of New York, James Rodney Gilstrap to the United States District Court for the Eastern District of Texas, and Jennifer Guerin Zipps to the United States District Court for the District of Arizona.
Judge Zipps was nominated to fill the seat of the late Judge John Roll, who was tragically killed in the January shooting spree targeted at Representative Gabrielle Giffords (D-AZ).
Arizona currently has three judicial vacancies, and the entire state has been declared a “judicial emergency” due to the lack of judges. Senator Jon Kyl (R-AZ) thanked the Judiciary Committee’s Chairman, Senator Patrick Leahy (D-VT), for adding Judge Zipps to today’s hearing, even though she had not been scheduled to appear.
Senator Leahy deserves praise for processing nominees through the Judiciary Committee in a timely manner. Despite the committee’s swift action on nominees, the full Senate is not confirming nominees fast enough, and there are now 114 current and future vacancies in the federal courts, the same amount as there were at the beginning of the year.
Today the Senate confirmed Paul Engelmayer to the Southern District of New York on a vote of 98-0, and Ramona Manglona to a 10-year term on the District Court of the Northern Mariana Islands on a voice vote. Both nominations were reported out of the Senate Judiciary Committee without opposition nearly four months ago.
There are now 25 judicial nominees pending before the Senate, 23 of whom were reported out of committee either without opposition or with strong bipartisan support. Despite this backlog of nominees, the Senate has only confirmed 5 judges to lifetime seats in the last 10 weeks. There has been little action despite the fact that 13 of these nominees would fill seats considered to be judicial emergencies by the Administrative Office of the U.S. Courts.
As Senator Leahy said before today’s votes,
[T]hese needless delays perpetuate the judicial vacancies crisis that Chief Justice Roberts wrote of last December and that the President, Attorney General, bar associations and chief judges around the country have urged us to join together to end. The Senate can do a better job working to ensure the ability of our Federal courts to provide justice to Americans around the country.
There are now 114 current and future vacancies in the federal courts, the same amount as there were at the beginning of the year.
The American people are growing weary of the behavior of the increasingly dysfunctional Senate and are hungry for constructive bipartisan action. The judicial system is in crisis and is paying the price for endless political gamesmanship. There is no legitimate reason for preventing final votes on all pending judicial nominees before the Senate goes out on recess in August.
This morning the Senate Judiciary Committee reported out five nominees in a unanimous, en banc voice vote. The nominees advanced to the floor were: Christopher Droney, nominee to the United States Court of Appeals for the Second Circuit; Robert D. Mariani, nominee to the United States District Court for the Middle District of Pennsylvania; Cathy Bissoon and Mark R. Hornak, nominees to the United States District Court for the Western District of Pennsylvania; and Robert N. Scola, Jr., nominee to the United States District Court for the Southern District of Florida. The committee took no action on the nomination of Steve Six to the United States Court of Appeals for the Tenth Circuit.
There are now 115 current and future vacancies in the federal judiciary, more than 1 in 7 seats
There are more current and future vacancies today (115) than there were at the beginning of the year (114). That’s more than 1 in 7 seats on the federal bench.
After a few months of incremental progress, the Senate’s confirmation rate has dropped precipitously, and new vacancies have outpaced confirmations.
Fortunately, the Senate Judiciary Committee has continued to efficiently process nominees, resulting in a huge batch of nominees awaiting confirmation votes. 26 nominees are awaiting final votes on the Senate floor, 24 of whom were reported out of committee either unopposed or with strong bipartisan support. 14 of these nominees would fill judicial emergencies.
Washington, D.C., July 18, 2011—Alliance for Justice President Nan Aron issued the following statement in the wake of the vote by the United States Senate to confirm J. Paul Oetken as judge for the United States District Court for the Southern District of New York:
Today marked an historic moment for the federal judiciary as, for the first time, an openly gay man was confirmed as a federal district court judge. The nomination and confirmation of J. Paul Oetken removes one of the final barriers to full and active participation of LGBT individuals in public life. Although gay men and lesbians have long served as judges, the barrier of silence and secrecy has now fallen, and highly qualified LGBT candidates for federal judgeships need no longer fear the nomination process or hide the truth of their lives.
President Obama is to be commended for continuing his effort to ensure that all Americans, without exception, have an opportunity to serve their nation from the federal bench. The President has, by far, the strongest record on diversity in his judicial nominations of any president in history, and his selection of Judge Oetken continues that trend.
Although today’s confirmation was groundbreaking, another kind of history continues to be made, however, as the judicial confirmation process has once again ground to a virtual halt in the Senate. Paul Oetken is the only lifetime judicial nominee to be confirmed during the past four weeks, leaving 21 of his colleagues languishing in an increasingly dysfunctional Senate and awaiting their final vote. Although we are overjoyed that the Southern District of New York has a brilliant new judge, the rest of America’s courts deserve the same.
* * *
The Senate Judiciary held a confirmation hearing for five nominees: Morgan Christen, to the United States Circuit Court for the Ninth Circuit; Scott W. Skavdahl, to the United States District Court for the District of Wyoming; Sharon L. Gleason, to the United States District Court for the District of Alaska; Yvonne Gonzalez Rogers, to the United States District Court for the Northern District of California; and Richard G. Andrews, to the United States District Court for the District of Delaware. Senator Hatch (R-UT) took Senator Grassley’s (R-IA) place for most of the hearing and said that he would support all of the nominees.
The Senate Judiciary Committee held an Executive Business Meeting at which five nominees were reported out, five nominees were held over, and one nominee was not voted on. Stephen A. Higginson, nominee to the United States Circuit Court for the Fifth Circuit, Jane M. Triche-Milazzo, nominee to the United States District Court for the Eastern District of Louisiana, and Katherine B. Forrest, nominee to the United States District Court for the Southern District of New York were reported out on voice votes. Alison J. Nathan, nominee to the United States District Court for the Southern District of New York was reported out on a 14-4 roll call vote with Senators Hatch, Kyl, Sessions, and Coburn voting no. Susan O. Hickey, nominee to the United States District Court for the Western District of Arkansas was reported out on a 15-3 roll call vote with Senators Hatch, Kyl, and Lee voting no.
The committee held over votes on five nominees: Christopher Droney, nominee to the United States Circuit Court for the Second Circuit; Robert D. Mariani, nominee to the United States District Court for the Middle District of Pennsylvania; Cathy Bissoon and Mark R. Hornak, nominees to the United States District Court for the Western District of Pennsylvania; and Robert N. Scola, Jr., nominee to the United States District Court for the Southern District of Florida, until next Thursday. The committee did not take any action on the nomination of Steve Six to the United States Circuit Court for the Tenth Circuit.
The Senate also approved a unanimous consent request to hold a vote next Monday on the nomination of Paul Oetken to the United States District Court for the Southern District of New York. Debate on the nomination will begin at 5:00p.m. and a vote will occur around 5:30p.m. If confirmed, Mr. Oetken will become the first openly gay man to be nominated and confirmed to the federal bench.
The vote on Mr. Oetken’s nomination will be the first for a lifetime judicial nominee since June 21st, a span of almost 4 weeks. There are 112 vacant or soon to be vacant seats on the federal bench—nearly 1 in 7 judgeships—and there are 22 nominees awaiting final confirmation votes, 18 of which were reported out of the judiciary committee either unanimously or on voice votes. There is no substantive reason to delay confirming these nominees.
The Senate took no action on the 17 Article III (lifetime) judicial nominees who are awaiting confirmation on the Senate floor. Sixteen of these nominees were reported out of the Senate Judiciary Committee without opposition, so there is no substantive reason for delaying their confirmation. The sad fact is that for political reasons, Republican senators have objected to confirming them quickly, perpetuating the crisis in the federal courts.
There are currently 111 vacancies in our federal judiciary, 35 of which are designated as “judicial emergencies” by the Administrative office of the U.S. Courts. Eight of the unopposed judges awaiting final confirmation vote would fill judicial emergencies.
President Obama has nominated Judge David Ogden Nuffer to the United States District Court for the District of Utah, and Thomas Owen Rice to the United States District Court for the Eastern District of Washington.
Judge Nuffer is a United States Magistrate Judge for the District of Utah, a position he has held on a full-time basis since 2003 and held on a part-time basis from 1995 to 2003. Mr. Rice is an Assistant United States Attorney for the Eastern District of Washington, a position he has held since 1987. The seat to which Judge Nuffer has been nominated is considered to be a judicial emergency by the Administrative Office of the U.S. Courts.
For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.
Today the Senate Judiciary Committee held over votes on the nominations of Stephen A. Higginson, nominee to be United States Circuit Court for the Fifth Circuit; Jane M. Triche-Milazzo, nominee to the United States District Court for the Eastern District of Louisiana; Alison J. Nathan and Katherine B. Forrest, nominees to the United States District Court for the Southern District of New York; and Susan O. Hickey, nominee to the United States District Court for the Western District of Arkansas, until the committee’s next business meeting. The committee did not vote on the nomination of Steve Six to the United States Circuit Court for the Tenth Circuit, which was also on the agenda.
Yesterday the Senate Judiciary Committee held a nominations hearing for five nominees: Judge Christopher Droney, nominee to the Second Circuit Court of Appeals; Robert Scola, nominee to the Southern District of Florida; Robert Mariani, nominee to the Middle District of Pennsylvania; and Cathy Bissoon and Mark Hornak, nominees to the Western District of Pennsylvania. Senator Richard Blumenthal (D-CT) presided and Senator Chuck Grassley (R-IA), the ranking Republican on the Committee, joined Senator Blumenthal in posing questions to the nominees.
For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.
The Senate has just confirmed Michael Simon to serve on the United States District Court for the District of Oregon by a vote of 64-35, with eleven Republicans joining all of the Democrats. Judge Simon fills one of the 112 vacancies in the federal courts, and a seat that’s also considered to be a “judicial emergency” by the Administrative Office of the Courts. Judge Simon was initially nominated on July 14, 2010, and he’s twice been reported out of the Senate Judiciary Committee on lopsided votes, but Republicans have nonetheless unnecessarily delayed his confirmation for almost a year.
The Senate Judiciary Committee Held a two-part Executive Business Meeting today, with a previously unannounced closed-door meeting sandwiched in between. At the originally scheduled business meeting this morning, the Committee unanimously reported out two nominees en banc: Marina Garcia Marmolejo, nominee to the Southern District of Texas, and Wilma Antoinette Lewis, nominee to the District of the Virgin Islands. After reporting out these nominees, the committee abruptly suspended the business meeting, went into closed-door session, and issued a notice that the business meeting would reconvene this afternoon. When the committee reconvened its business meeting, it reported out the nomination of Michael C. Green, nominee to the Western District of New York on a voice vote, with only Sen. Lee (R-UT) objecting, and it held over a vote on the nomination of Steve Six to Tenth Circuit Court of Appeals until its next meeting on June 23rd.
Apart from today’s business meeting and closed-door session, the committee also scheduled a hearing next week for five nominees: Christopher Droney to the Second Circuit Court of Appeals; Robert D. Mariani to the Middle District of Pennsylvania; Cathy Bissoon and Mark R. Hornak to the Western District of Pennsylvania; and Robert N. Scola, Jr. to the Southern District of Florida. Sen. Blumenthal (D-CT) will preside at the hearing.
Yesterday the Senate confirmed two nominees to the District of New Jersey: Claire C. Cecchi, by a vote of 98-0, and Esther Salas, by a voice vote. The two confirmations are the first since May 17th. Judges Cecchi and Salas are the 9th and 10th women, and Judge Salas is the third judge of Hispanic descent, to serve as federal district judges in New Jersey, out of 82 judges in the state’s history. With these two confirmations, there are now 107 vacancies on the federal bench, 54 of which have pending nominees. Sixteen of the pending nominees are awaiting final confirmation on the Senate floor.
This week President Obama nominated Margo Kitsy Brodie to the Eastern District of New York, Jesse M. Furman to the Southern District of New York, Susie Morgan to the Eastern District of Louisiana, and Mary Elizabeth Phillips to the Western District of Missouri.
Ms. Brodie, Mr. Furman, and Ms. Phillips are currently Assistant United States Attorneys, and Ms. Morgan is a commercial litigation partner at the New Orleans law firm of Phelps Dunbar. With these nominations, there are now 56 nominees pending in the Senate and 53 vacancies without nominees.
Yesterday afternoon the Committee held a hearing for five nominees: Stephen Higginson, nominee to the Fifth Circuit Court of Appeals; Jane Triche-Milazzo, nominee to the Eastern District of Louisiana; Alison Nathan and Katherine Forrest, nominees to the Southern District of New York; and Susan Hickey, nominee to the Western District of Arkansas.
Senator Al Franken (D-MN) presided, and Senator Chuck Grassley (R-IA), the ranking Republican on the Committee, also posed questions. One notable aspect of the hearing was that four female nominees appeared together on the second panel. As AFJ documented in a recent report, nearly 50% of president Obama’s nominees have been women , by far the best percentage of female nominees by any president in American history.
Thursday morning, the committee held an executive business meeting at which four nominees—Steve Six, nominee to the Tenth Circuit Court of Appeals; Marina Garcia Marmolejo, nominee to the Southern District of Texas; Michael C. Green, nominee to the Western District of New York; and Wilma Antoinette Lewis, nominee to be the District Court of the Virgin Islands—were held over until the Committee’s next meeting on July 16th.
PRESS RELEASEAlliance for Justice Research on President Obama’s Judicial Nominations
Finds Last Year’s Republican Obstruction and This Year’s Sluggish Pace
of Confirmations Leave Legacy Still in the Balance
Washington, D.C., June 1, 2011– A little over midway through President Barack Obama’s first term, an Alliance for Justice analysis of his nominations to the federal judiciary finds that the pattern of Republican obstruction that plagued his first two years has partially abated, but that the large number of vacancies carried over from the last Congress has left the federal courts in crisis and amplifies the need for an accelerated schedule of presidential nominations and congressional confirmations.
If the current steady but lethargic pace of nominations and final confirmation votes persists through the end of the year, roughly 44 additional nominees can expect to be confirmed. Accounting for anticipated new vacancies, the total number of vacancies in the federal judiciary will only have been reduced from 114 to approximately 97, with the 2012 election year looming. There are no formal procedural barriers to moving more quickly, however, and the current pace is dictated purely by political will within the administration and the Senate.
That conclusion is drawn from data in two new reports, The State of the Judiciary: President Obama and the 111th Congress, a summary and analysis of the judicial nominations process in the first two years of the administration, and Judicial Nominations in the 112th Congress: January-May 2011, an overview of the patterns emerging after five months of the current Senate session, as well as a calendar tracing activity in each step of the process.
Additionally, the reports find:
- Republican obstruction in the last Congress left President Obama with the lowest percentage of approved judicial nominees at the end of his first two years of any President in American history.
- Judicial vacancies actually increased in the first two years from 55 to 97 and officially designated “judicial emergencies” exploded from 20 to 46, leaving 29 states without enough judges to handle the case load. The lack of action in the last Congress compelled the President to re-submit 42 nominees in January 2011 and made it even more difficult to catch up with the growing number of vacancies on the federal bench. After five months of the new Congress, only 24 of the President’s 76 nominees have received final votes, and total vacancies now number 109.
- The continued slow pace of confirmations has hampered the President’s ability to shape the federal bench, but this can be rectified by increasing the number of nominations and appreciably accelerating the number of hearings and final votes in the Senate, including for those nominees facing Republican opposition. The historical record shows that the window for action is rapidly closing, however, as fewer judges are traditionally confirmed in presidential election years. That pattern will likely hold in 2012.
- The ratio of judges appointed by Republican and Democratic presidents has changed only slightly, with Republican appointees still accounting for over 56.5 percent of federal judges.
Alliance for Justice President Nan Aron, in releasing these reports, commented that, “President Obama faced two years of unremitting obstruction to his judicial nominees, creating a crisis in our courts that continues to this day. Under pressure from Supreme Court justices, other federal judges, concerned organizations, editorial pages, and a fed-up public, reforms were adopted by the current Senate to return to regular order and end the logjam. But now that five months have passed, it’s becoming increasingly clear that the pace of confirmations is not nearly fast enough and that, as the filibuster of Goodwin Liu shows, Republican obstruction has not ended. A commitment to ‘comity’ among Senators and an increased sense of urgency are welcomed, but our research shows that this President’s legacy and the health of our judicial system depend not on high-minded words, but on the very real need for significantly more presidential nominations and a much swifter confirmation process in the Senate.”
Goodwin Liu, one of the most remarkable, highly qualified, and well-respected judicial nominees in recent memory, has withdrawn his nomination to the Ninth Circuit Court of Appeals.
Click here to read Liu’s letter to President Obama.
When Senator Lamar Alexander said, “I will not vote to deny a vote to a Democratic president’s judicial nominee just because the nominee may have views more liberal than mine,” it was taken as a statement of principle, and a reflection of the belief that the Senate should hold a final yes-or-no vote on every one of a president’s judicial nominees.
But after Senator Alexander — and every Republican except Sen. Lisa Murkowski of Alaska — voted against a motion to break a filibuster and hold a yes-or-no vote on Liu’s nomination, it’s clear that Alexander’s statement of principle leaves some room for interpretation. (Senator Orrin Hatch of Utah voted “present” in the roll call, which he has painted as a principled stand. Nonetheless, a vote to end a filibuster requires 60 “yes” votes to break, so a “no” vote is functionally the same as no vote at all.)
The New York Times puts forth the idea that Alexander’s vote wasn’t about Liu being “more liberal” than the senator from Tennessee:
But other Republicans were more forthcoming about the real reason for the blockade: Mr. Liu dared to criticize Justice Samuel Alito Jr. as harshly conservative before he was confirmed to the Supreme Court. The filibuster apparently was payback, and the Republican eagerness for revenge has broken faith and a clear understanding on the Senate floor. That will make it harder to fill benches during this administration and many more to come.
Senator Alexander wasn’t alone, of course. Other Republican senators have pledged to not filibuster judicial nominees, yet they stood together and Thursday and did exactly that. The result is that a federal judgeship, classified as a “judicial emergency” remains vacant, the caseload on the Ninth Circuit remains dangerously high, and a qualified, intelligent nominee was rejected by the Senate on the flimsiest of excuses.
Alliance for Justice President Nan Aron issued the following statement on the Republican filibuster of Ninth Circuit Court of Appeals nominee Goodwin Liu:
Today is an extremely sad day for American justice as all but one Republican Senator chose to block a final vote on Goodwin Liu, one of the most remarkable, highly qualified, and well-respected judicial nominees in recent memory. The vote to sustain the filibuster relied almost exclusively on dishonest and distorted attacks on Professor Liu’s record and character. Not only have the American people been denied a great judge, and Asian Americans in Western states denied representation on the federal bench, but the judiciary itself has once again been subjected to the kind of destructive obstructionist tactics that have precipitated a national crisis in the courts.
We find it disheartening that consistency and truth have been sacrificed in the name of crass political posturing. We also reject the transparently false idea that somehow the Liu nomination falls within the concept of “extraordinary circumstances,” as spelled out in the “Gang of 14” agreement of 2005.
The only thing extraordinary about the circumstances surrounding this vote is the amount of hypocrisy and cynicism emanating from Republican Senators, who should stop pretending this filibuster has anything to do with principle, and admit they blocked a vote on Goodwin Liu because they didn’t want a person of his caliber on the bench.
The notion that Goodwin Liu lies so far outside the judicial mainstream that the Senate should not even be permitted to have a final vote on his nomination is belied by his record but also by the numerous bipartisan endorsements he received, including those of very prominent conservatives.
Although we are deeply disappointed by today’s vote, we believe it is more important than ever that the President and the Senate address the continuing crisis in the federal courts, significantly accelerate the pace of nominations and confirmations, and end the political games that are damaging justice in our nation.
This evening President Obama nominated Alaska Supreme Court Justice Morgan Christen to the United States Court of Appeals for the Ninth Circuit. If confirmed, Justice Christen would become the first female federal circuit court judge from Alaska.
The Center for American Progress has produced a video of Goodwin Liu in his own words:
For more on Goodwin Liu, click here.
** UPDATE: THIS ALERT IS NO LONGER ACTIVE **
An acclaimed scholar, teacher, and lawyer, Goodwin Liu is widely considered one of the brightest legal minds of his generation. Yet his nomination to the Ninth Circuit Court of Appeals has been stalled for over a year by obstruction in the U.S. Senate.
Act now to support Goodwin Liu’s nomination to the Ninth Circuit. Tell your senators to confirm Goodwin Liu TODAY!
Supported by leaders from across the political spectrum, Goodwin Liu possesses the intellect, integrity, experience, and temperament to serve as an excellent circuit court judge. Not even his harshest critics can claim that Liu isn’t superbly qualified, but some Republicans may still try to prevent him from even receiving a vote in the Senate.
Goodwin Liu has waited too long for a vote. We need you to join us in a national effort to support Liu’s confirmation TODAY.
Liu’s nomination also has historic significance: if confirmed, he would become only the second active Asian American appellate judge in the country, and the only active Asian American judge on the West Coast’s Ninth Circuit. The Senate will decide Thursday if Liu will even receive a yes-or-no vote; the time to act is now!
Tell your senators to move forward with Goodwin Liu’s nomination, and to vote to confirm him to the Ninth Circuit.
On May 3, cloture was invoked on John McConnell, a long-blocked nominee to the District Court of Rhode Island, despite unprecedented opposition from the U.S. Chamber of Commerce. McConnell was confirmed on a party-line vote the next day. The McConnell vote helped pave the way for confirmation of Edward Chen this week as the first Asian-American district court judge in San Francisco. In addition, the White House has submitted eleven new nominees, a considerable increase from the two-per-week average prior to May.
These developments help clear the way for the Senate to consider the nominations of Susan Carney to the Second Circuit, Goodwin Liu to the Ninth Circuit, and Caitlin Halligan to the D.C. Circuit. Stay tuned for more news and opportunities to get involved in the coming weeks.
Yesterday, the Senate confirmed Michael Francis Urbanski to the United States District Court for the Western District of Virginia on a vote of 94-0. Judge Urbanski is the 23rd Obama nominee to be confirmed during the 112th Congress.
There are currently 110 vacancies in the federal judiciary, 34 of which are considered to be “judicial emergencies” by the administrative office of the U.S. Courts. Forty-nine nominees are pending in the Senate, 14 of which are awaiting final confirmation votes.
President Obama has nominated Steve Higginson to the United States Court of Appeals for the Fifth Circuit. Mr. Higginson, a former editor-in-chief of the Yale Law Review, is currently an Assistant United States attorney in Louisiana.
With Mr. Higginson’s nomination, there are now 10 nominees pending for the 21 vacancies in our federal appellate courts.
Last night, the Senate confirmed Ed Chen to the Northern District of California on a vote of 56-42. The vote represents a major victory for Senators Feinstein and Boxer, the Asian-American community, the public interest legal community, and everyday Americans who deserve highly qualified judges.
Judge Chen is the first Asian American to serve as a federal district court judge in San Francisco. He has had a distinguished career both as a federal magistrate judge and as an attorney for the American Civil Liberties Union. Originally nominated on August 6, 2009, he had been pending for longer than any other Obama nominee, so his supporters have long been pushing for—and looking forward to—this day.
In an appearance before the Senate Judiciary Committee this week, United States Attorney General Erik Holder highlighted the vacancy crisis in our federal courts. Mr. Holder said that:
Today, our nation’s court system is in a state of crisis, with more than ten percent of federal judgeships sitting vacant. If the Senate maintains the confirmation pace set during the last two years, the result will be a federal judicial system stressed to the breaking point, with litigants waiting longer and longer for their day in court. I urge the Senate to act without delay on all outstanding judicial nominations.
There are 113 current and future vacancies on the federal bench, 35 of which are considered to be judicial emergencies by the Administrative Office of the U.S. Courts. Current and future vacancies affect 46 states (all but Iowa, Minnesota, and the Dakotas). Eleven nominees are currently awaiting final confirmation vote in the Senate.
Last night, the Senate agreed to hold a confirmation vote on the nomination of Edward Milton Chen to the United States District Court for the Northern District of California, avoiding a possible cloture vote on his nomination. An exact time for the vote has not yet been set, but it has a good chance of happening next week.
The agreement to vote on his nomination states:
“At a time to be determined by the Majority Leader, in consultation with the Republican Leader, there will be 3 hours of debate on the Chen nomination, with the time equally divided and controlled between Senators Leahy and Grassley or their designees. Upon the use or yielding back of time, the Senate will proceed to a roll call vote on confirmation of the Chen nomination.”
Republicans consented to the vote after losing a cloture vote on the nomination of Jack McConnell earlier this week. The agreement to vote on Judge Chen’s nomination is a victory for Senators Feinstein and Boxer, who have strongly supported his nomination.
Judge Chen is currently the longest pending judicial nominee, having been nominated on August 6th, 2009. If confirmed, he would become the second Asian American ever to serve in the Northern District of California, which includes San Francisco.
After defeating a Republican filibuster attempt, the Senate confirmed Jack McConnell as a United States District Judge in the District of Rhode Island by a vote of 50 to 44. The vote represents a major victory for Senators Reed and Whitehouse of Rhode Island, who worked tirelessly to ensure Mr. McConnell’s confirmation. It is also a victory for moving forward on other judicial nominations.
Judge McConnell is the 20th judicial nominee confirmed during the 112th Congress, and the 82nd during the Obama presidency. There are currently 90 remaining vacancies in the federal judiciary, including 35 seats considered to be “judicial emergencies” by the Administrative Office of the U.S. Courts. With Mr. McConnell’s confirmation, 11 judicial nominees await a final confirmation vote in the Senate.
ALLIANCE FOR JUSTICE PRAISES SENATE FOR BREAKING THE FILIBUSTER OF DISTRICT COURT NOMINEE JACK McCONNELL AND TURNING AWAY EFFORTS BY CORPORATE INTERESTS TO CAPTURE THE NOMINATIONS PROCESS
Washington, D.C., May 4, 2011– Alliance for Justice President Nan Aron released the following statement on the successful vote in the United States Senate to overcome a Republican filibuster of the nomination of Jack McConnell to the United States District Court for the District of Rhode Island:
We commend the United States Senate for turning back efforts to prevent Jack McConnell from receiving a vote for a seat on the United States District Court. Democrats, along with 11 principled Republicans, refused to participate in the filibuster of a district court nominee. This effort to stymie a final vote was virtually without precedent and blatantly disregarded Senate traditions. Today’s vote was also a victory for everyday Americans against those who were willing to unceremoniously discard long-standing Senate practices and the fragile spirit of comity in order to satisfy the desires of the U. S. Chamber of Commerce. This attempt by senators beholden to corporate interests to politicize the judicial nomination process demonstrated profound disrespect for a process that has served the Senate well throughout its history and for the judicial system itself, which faces a crisis of empty courtrooms across the nation. We congratulate those senators from both parties who were willing to fulfill their constitutional duty and put the interests of the nation first.
With today’s vote and the establishment of a clear bipartisan consensus on the need for yes-or-no votes on nominees to the federal bench, the path is now clear to move forward on all nominees pending in the Senate, including Jack McConnell. We call on the White House and the Senate to increase the pace of nominations and confirmation and to redouble their efforts to fully staff our federal courts.
Last night the Senate confirmed Kevin Sharp to the United States District Court for the Middle District of Tennessee on a vote of 89-0, and confirmed Roy Dalton to the United States District Court for the Middle District of Florida by unanimous consent.
Both nominees fill seats considered to be “judicial emergencies” by the Administrative Office of the U.S. Courts.
There are still 91 current vacancies in the federal courts, of which 35 are considered to be judicial emergencies.
Last night, Majority Leader Harry Reid filed a cloture petition on the nomination of Jack McConnell to the United States District Court for the District of Rhode Island. This is the first cloture petition filed on a judicial nominee in the 112th Congress, and the first petition filed on a district court nominee during the Obama presidency. It is also the first cloture petition filed on a federal district court nominee since 2004.
In fact, only two cloture petitions were filed on district court nominees during George W. Bush’s presidency, and in both cases there wasn’t actually a cloture vote, as the Senate invoked cloture by unanimous consent and quickly confirmed the nominees. That there wasn’t a cloture vote on President Bush’s district court nominees is unsurprising, as district court nominees have long been subject to less Senate scrutiny than circuit court nominees. The cloture filing on Mr. McConnell’s nomination is also notable because he enjoys bipartisan support from Senator Lindsey Graham (R-SC).
In filing the petition, Majority Leader Reid said that “I hope, as I mentioned this morning, we are not in a situation where we have to file cloture on district court judges. That is a little much… I would hope we could get this done on Wednesday when this cloture motion ripens.”
The Washington Post has published an editorial in support of Senate legislation that would streamline the application process for hundreds of lower-level executive branch nominees.
The Post editorial says that “staffing the executive branch has become almost impossible” and that
[T]he Senate confirmation process has become an all-consuming monster for everyone involved, eating time, money and the enthusiasm of potential nominees to enter government service. All face excessive and often redundant vetting — involving FBI background checks, scrubbing of old tax records and scrutiny of one’s private life that few would find fair.
Moreover, the Post says that legislation, while necessary, still “wouldn’t do enough to end the irrationality of the confirmation system,” and that background checks “will continue to feel like ‘psychological strip-searches.'”
Aside from streamlining the process for executive branch nominees, this legislation could free up valuable floor time, which could allow the Senate to take up other pressing matters such as the confirmation of judicial nominees.
Click here to read the full editorial.
The President of the Federal Bar Association, Ashley L. Belleau, has authored an op-ed in the Atlanta Journal Constitution calling on the President and Congress to fill vacant judgeships. Ms. Belleau wrote that:
The fact that we don’t have enough judges to decide promptly the federal civil and criminal lawsuits in our country owes itself to the Congress and the president. . . . Both have failed to keep the process moving by timely providing capable, qualified individuals to fill judgeships as they open up due to retirement, death or resignations.
Nearly 12% of federal judgeships—93 seats—are currently vacant, and 37 of those seats are considered to be “judicial emergencies” by the Administrative Office of the U.S. Courts. Ms. Belleau writes that:
[O]ur federal court system is bursting at the seams. The phrase “justice delayed is justice denied” describes the dire situation in many federal courthouses. Judicial vacancies plainly undermine the capacity of our courts to render justice within a reasonable period of time.
Ms. Belleau also writes about the financial costs of delayed litigation to parties and to taxpayers.
Sadly, few Americans understand the impact these judicial vacancies have on their lives. Those of us who try federal cases know its impact in the continuance of cases for months, even years, without decision. Vacancies and delay add greater costs to already high litigation expenses. For business clients, these costs get passed on to customers. And when the United States is a party to the case, it means that the public is paying that higher tab.
For criminal defendants awaiting trial, it can mean more detention time, adding even more costs to the taxpayer. Just last year, the federal cost of pretrial detention alone was $1.4 billion, according to the Department of Justice.
Ms. Belleau concludes with an emphatic plea to fill vacant judgeships:
Vacancies desperately need to be filled; new judges desperately need to be added. We owe that to our citizens. We owe that to our Constitution. We owe that to the rule of law. And we owe it to the cause of justice.
Prompt and thoughtful justice, not endless delay, is what the American people expect from their legal system. It is what we deserve. It is what due process requires. And it is the most cost-efficient approach to the resolution of lawsuits in our nation’s courts.
For the full text of her op-ed, click here.
Our 2011 Judicial Selection Calendar provides an overview of all White House and Senate action on judicial nominees during 2011. Aside from past actions, it shows when the Senate will likely be in session and when the Senate Judiciary Committee is likely to hold hearings and executive business meetings for the remainder of the year. As such, it provides the reader with an easy means of understanding the pace and process of judicial nominations over the course of the year.
You can download a PDF copy of the calendar by clicking here.
In a recent editorial, the Chicago Tribune tackled the growing problem of judicial vacancies by asking the question, “If you wanted to leave your job and your boss asked if you could stick around until your replacement was chosen, how long would you be willing to wait? A week? A month?”
It’s a problem faced by many federal judges nearing retirement. With soaring caseloads, many courts simply can’t afford to go without a judge, and the Senate has been painfully slow to confirm nominees.
The editorial asks:
What’s the holdup? As is often the case these days in Washington, it’s partisan politics. Last year, Democrats claim, Senate Republicans delayed confirmation votes in hopes of gaining control of the Senate. This year, they are allegedly putting them off in hopes of winning the presidency next year.
There is some basis for these charges. President Barack Obama has had a tough time getting his judicial nominees confirmed. Only 62 percent of his choices for district judge have made it — compared to 74 percent of George W. Bush’s and 86 percent of Bill Clinton’s. These are the positions that should be the least problematic, since district judges are the ones who do the grunt work of running trials and processing cases, not the philosophical task of making law.
Click here to read the editorial.
On Thursday, the Senate Judiciary Committee reported out five nominees: Goodwin Liu, nominee to the United States Court of Appeals for the Ninth Circuit on a party-line vote; Esther Salas, nominee to the United States District Court for the District of New Jersey on a unanimous voice vote; J. Paul Oetken and Paul A. Engelmayer, nominees to the United States District Court for the Southern District of New York on unanimous voice votes; and Ramona V. Manglona, nominee to the United States District Court for Northern Mariana Islands on a unanimous voice vote.
The Senate Judiciary Committee has scheduled a hearing for next Wednesday on four judicial nominees: Henry Floyd to the United States Court of Appeals for the Fourth Circuit; Nelva G. Ramos to the United States District Court for the Southern District of Texas; Richard B. Jackson to the United States District Court for the District of Colorado; and Sara L. Darrow to the United States District Court for the Central District of Illinois.
On Monday, the Senate confirmed Jimmie Reyna to the United States Court of Appeals for the Federal Circuit by a vote of 86-0. Judge Reyna is the first Hispanic American to serve on the Federal Circuit.
On Wednesday, President Obama nominated two people to district court seats: Sharon L. Gleason to the United States District Court for the District of Alaska; and Susan Owens Hickey to the United States District Court for the Western District of Arkansas. Ms. Gleason is currently the Presiding Judge of the Third Judicial District of the Alaska Superior Court in Anchorage, a position she has held since 2009. Ms. Hickey is currently a Circuit Judge for the Thirteenth Judicial Circuit for the State of Arkansas in El Dorado, a position she has held since 2010.
Last night the Senate agreed to vote on Monday at 5:30p.m. on the nomination of Jimmie Reyna to the United States Court of Appeals for the Federal Circuit. Mr. Reyna currently serves as a partner and director at Williams, Mullin P.C., in Washington, D.C. He is a leading international trade attorney with significant experience in trade policy, business regulation, and compliance law. Reyna was nominated on September 29, 2010, and he was reported out of the Senate Judiciary Committee unanimously on March 10, 2010. If confirmed, Mr. Reyna would become the first Hispanic American ever to serve on the Federal Circuit.
Yesterday the Senate Judiciary Committee held an executive business meeting at which it reported out four nominees and held over five nominees until its next meeting on April 7th.
John J. McConnell, nominee to the United States District Court for the District of Rhode Island was reported out on a vote of 11-7, with Senator Graham (R-SC) voting with the Democratic committee members. Three other nominees, Kevin Sharp, nominee to the United States District Court for the Middle District of Tennessee, Roy Bale Dalton, Jr., nominee to the United States District Court for the Middle District of Florida, and Claire C. Cecchi, nominee to the United States District Court for the District of New Jersey were all reported out en banc.
Goodwin Liu, nominee to the United States Circuit Court for the Ninth Circuit was held over for the second time, at the request of Senator Grassley (R-IA). Esther Salas, nominee to the United States District Court for the District of New Jersey, J. Paul Oetken, nominee to the United States District Court for the Southern District of New York, Paul A. Engelmayer, nominee to the United States District Court for the Southern District of New York, and Ramona V. Manglona, nominee to the United States District Court for the Northern Mariana Islands were all held over for the first time.
Last night the Senate confirmed Mae D’Agostino to the Northern District of New York on a vote of 88-0. Ms. D’Agostino was the 14th judicial nominee to be confirmed during the 112th Congress, and the 76th during the Obama presidency. Forty-four nominees are still pending in the Senate, including 18 who would fill seats considered to be “judicial emergencies” by the Administrative Office of the U.S. Courts.
On Monday the Senate confirmed James Boasberg to the United States District Court for the District of Columbia on a vote of 96-0. Judge Boasberg was nominated on June 17, 2010, and was reported out of committee without opposition on Dec. 1, 2010, but did not get a confirmation vote at the end of the 111th Congress. He was renominated at the beginning of the 112th Congress, and was again reported out of committee without opposition on Feb. 3, 2011.
The Senate Judiciary Committee processed several nominees this week. On Wednesday, it held a hearing for Bernice Bouie Donald, nominee to the United States Circuit Court for the Sixth Circuit and J. Paul Oetken and Paul A. Engelmayer, nominees to the United States District Court for the Southern District of New York, and Ramona Villagomez Manglona, nominee to the District Court for the Northern Mariana Islands.
No Republican senators appeared at the hearing. If confirmed, Mr. Oetken would become the first openly gay man to be confirmed to the federal bench.
This Thursday the Senate Judiciary Committee also reported out the nomination of Edward Chen to the United States District Court for the Northern District of California on a party-line vote. If confirmed, Judge Chen would become the second Asian American to ever serve in the Northern District, which contains San Francisco.
The Senate Judiciary Committee, at the request of Republican senators, also held over votes until its next meeting on the nominations of Goodwin Liu to the United States Court of Appeal for the Ninth Circuit, John J. McConnell to the United States District Judge for the District of Rhode Island, Kevin Hunter Sharp to the United States District Court for the Middle District of Tennessee, Roy Bale Dalton, Jr. to the United States District Court for the Middle District of Florida, and Claire C. Cecchi to the United States District Judge for the District of New Jersey. Republican senators have made this request the first time nominees come up for a vote in executive session for every nominee during the 112th Congress.
Yesterday President Obama nominated two women to federal district court seats. Mary Geiger Lewis was nominated to the United States District Court for the District of South Carolina and Jane Margaret Triche-Milazzo was nominated to the United States District Court for the Eastern District of Louisiana.
In announcing their nominations, President Obama said that “these women have had distinguished legal careers and I am honored to ask them to continue their work as judges on the federal bench.” Ms. Lewis is a partner at Lewis & Babcock in Columbia, South Carolina, and Ms. Triche-Milazzo is a District Judge of the Twenty-third Judicial District in the State of Louisiana.
There are now 46 nominees to the 116 vacancies on the federal bench.
Today’s LA Times profiles the work being done by senior judges in the federal courts. The escalating crisis in our courts has led to a crushing caseload for many courts as the Senate has been glacially slow to debate and confirm judges to fill vacancies. Senior judges are now being called upon to work long past retirement to help manage the growing workloads.
[Judge Betty] Fletcher, who turns 88 this month and relies on a walker to navigate airports and courthouse corridors, retired a dozen years ago yet still works full time, on what is known as senior status, for the U.S. 9th Circuit Court of Appeals. She travels throughout the court’s nine-state region for hearings and spends seven days a week poring over foot-high stacks of written filings.
As federal courts stagger under the weight of mounting caseloads and vacant judgeships go unfilled for years, senior judges like Fletcher have come to the rescue, especially in the 9th Circuit, where they shoulder a third of the legal load.
“It’s kind of a double whammy,” Fletcher said of the courts that have had no new judgeships added in 21 years and that have declining numbers of active judges because of partisan posturing in Congress. Nearly 11% of the nation’s 875 lifetime positions are empty.
Click here to read the full article.
Yesterday the Senate confirmed Max Cogburn, Jr. to a seat on the United States District Court for the Western District of North Carolina on a vote of 96-0. The confirmation vote was significant in two ways. First, the Senate has up until this point only confirmed nominees on Mondays, so having two votes in one week is a good sign. Second, Cogburn was the fourth nominee confirmed this week, the most out of any week this Congress. With 117 remaining vacancies on the federal bench the Senate needs to keep confirming at least that many nominees a week to cut into the huge backlog of vacancies.
The Senate Judiciary Committee also reported six nominees to the floor. Caitlin Halligan, nominee to the United States Court of Appeal for the District of Columbia, was reported out on a 10-8, party-line vote. The other five nominees—Jimmie Reyna, nominee to the United States Court of Appeal for the Federal Circuit, John A. Kronstadt, nominee to the United States District Court for the Central District of California, Vincent L. Briccetti nominee to the United States District Court for the Southern District of New York, Arenda L. Wright Allen, nominee to the United States District Court for the Eastern District of Virginia, and Michael Francis Urbanski, nominee to the United States District Court for the Western District of Virginia—were reported out on voice votes. There are now three circuit court and eight district court nominees awaiting confirmation votes on the Senate floor.
Two judges, James Shadid and Sue Myerscough, were confirmed to the Central District of Illinois. Judge Shadid was confirmed by a vote of 89-0, and Judge Myerscough was confirmed by unanimous consent. Both judges filled seats that the Administrative Office of the U.S. Courts considers to be “judicial emergencies.” Additionally, Judge Anthony Battaglia was confirmed to the Southern District of Illinois by a vote of 89-0.
There are now 117 current and future vacancies in the federal judiciary, and 44 nominees pending in the Senate.
Yesterday President Obama nominated Nannette Jolivette Brown to the United States District Court for the Eastern District of Louisiana, Nancy Torresen to the United States District Court for the District of Maine, and Wilma Antoinette Lewis to the United States District Court for the Virgin Islands. If confirmed, Ms. Brown and Ms. Torrensen would obtain lifetime appointments and Ms. Lewis would serve for a term of 10 years, since the Virgin Islands is a territorial court. President Obama has now nominated twelve judges to lifetime appointments during the 112th Congress..
Yesterday the Senate Judiciary Committee held hearings on the nominations of Goodwin Liu to the Ninth Circuit court of Appeal, Kevin Sharp to the United States District Court for the Middle District of Tennessee, Roy Dalton to the United States District Court for the Middle District of Florida, and Claire Cecchi and Esther Salas to the to the United States District Court for the District of New Jersey. This was Liu’s second hearing before the committee, and committee Republicans again posed questions that mischaracterized his record and judicial philosophy. For a good rundown and debunking of these mischaracterizations, you can read a recent blog post by Richard Painter, a Law Professor at the University of Minnesota and George W. Bush’s chief ethics counsel.
Today the Senate Judiciary Committee met in executive session and reported out Mae D’Agostino, nominee to the Northern District of New York, on a voice vote. The committee also held over votes until next week on six other nominees: Caitlin Joan Halligan, nominee to the United States Court of Appeals for the District of Columbia Circuit; Jimmie V. Reyna, nominee to the United States Court of Appeals for the Federal Circuit; John A. Kronstadt nominee to the United States District Court for the Central District of California; Vincent L. Briccetti, nominee to the United States District Court for the Southern District of New York; Arenda L. Wright Allen, nominee to the United States District Court for the Eastern District of Virginia; and Michael Francis Urbanski, nominee to the United States District Court for the Western District of Virginia. These six nominees will likely be reported out of committee next Thursday.
Last night the Senate unanimously confirmed Amy Totenberg and Steve Jones to the Northern District of Georgia. Both judges fill vacancies previously considered “judicial emergencies” by the Administrative Office of the U.S. Courts.
Judge Totenberg and Judge Jones were originally nominated in 2010, and the Judiciary Committee unanimously reported both nominees to the full Senate in December 2010, but the Senate failed to vote on their nominations before for the 111th Congress adjourned. President Obama renominated them in January, and the Judiciary Committee again voted unanimously to report them to the full Senate on February 3.
The Senate has now confirmed one circuit court and 6 district court judges the 112th Congress. There are still almost 120 current and future vacancies in the federal courts, including 42 seats considered “judicial emergencies.”
Yesterday, at a Brookings Institution event entitled “Breaking the Judicial Nominations Logjam,” two federal judges voiced serious concerns about current vacancies in the federal judiciary and called for quick confirmation of federal judges.
The Chief Judge of the U.S. District Court for the District of Columbia, Royce Lamberth, said that the overburdened docket in his court and speedy-trial rules for criminal cases meant that “we plan to try very few civil cases this spring and summer.” There are three vacancies in Judge Lamberth’s court, and two nominees—James Boasberg and Amy Jackson—both of whom were reported out of the Senate Judiciary Committee without opposition, are awaiting final confirmation votes. Judge Lamberth, a Reagan appointee, also said that he encourages judges on his court to take senior status as soon as they’re eligible so their successors can be confirmed even as they continue to hear cases, thereby reducing the burden on the courts judges.
A Senior Judge from the Northern District of Texas, W. Royal Furgeson, Jr., spoke about the vacancy crisis in Texas’ federal district courts. Judge Furgeson, a Clinton appointee, said that the high volume of cases in his district reminded him of his days as a young attorney, when he represented clients in night traffic court and cases were processed like they were on an assembly line. He said that while litigants in traffic court may face a few hundred dollars in fines, the defendants in federal court could face years in prison. There are six vacancies on the federal district courts in Texas and only two nominees—Nelva Ramos and Marina Marmolejo, both of whom are pending in committee.
Last night President Obama nominated two more judges to the federal bench. Judge Timothy M. Cain was nominated to the United States District Court for the District of South Carolina, and Judge Scott W. Skavdahl to the United States District Court for the District of Wyoming. Mr. Cain currently serves as a Family Court Judge in South Carolina’s Tenth Judicial Circuit, and Mr. Skavdahl is a United States Magistrate Judge for the District of Wyoming.
This morning the Senate Judiciary Committee considered nominees and sent four to the full Senate for a vote:
- Sue E. Myerscough and James E. Shadid, nominees to the United States District Court for the Central District of Illinois, were reported out on a unanimous voice vote.
- Susan Carney, nominee to the United States Court of Appeals for the Second Circuit, was reported out on a 16-2 vote
- Michael H. Simon, nominee to the United States District Court for the District of Oregon, was reported out on a 14-4 vote.
The committee also held over a vote on the nomination of Mae D’Agostino to the United States District Court for the Northern District of New York.
Alliance for Justice has joined with a diverse coalition of 75 other organizations in signing an open letter to Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell, urging the Senate to return to “regular order” and permit swift confirmation votes on President Obama’s judicial nominees.
The letter decries the persistent pattern of obstruction in the last Congress that “led to the lowest percentage of a president’s nominees being confirmed at this point in his presidency than any president in American history.”
The 76 groups signing the letter represent a wide range of constituencies and reflect growing concern throughout American society about the crisis in the courts and the threat to the viability of the judicial system posed by unfilled judicial vacancies. Among the organizations speaking out are the National Resources Defense Council; The Wilderness Society; the Sierra Club; Human Rights Campaign; the Brady Campaign to Prevent Gun Violence; AIDS United, Communications Workers of America and Service Employees International Union.
Senate leaders have promised a new spirit of compromise and cooperation during the recent debates over rules reform. Although the Senate has confirmed 5 nominees in this session, that number does not even keep pace with retirements from the federal bench announced in the last few months. President Obama has already renominated 42 nominees who were returned at the end of the 111th Congress, and the Senate has pledged to accelerate the pace of nominations in the current Congress.
A PDF copy of the letter is available here.
Tonight the Senate confirmed James Graves Jr. to the United States Court of Appeal for the Fifth Circuit on a voice vote, and Edward Davila to the United States District Court for the Northern District of California by a vote of 93-0.
Judge Graves is the first African American from Mississippi to serve on the Fifth Circuit, which hears cases from Mississippi, Louisiana, and Texas. Judge Davila is the second Latino judge (and the only active Latino judge) to serve on Northern District of California, which encompasses much of the California coast from the Oregon border down to Monterrey.
The Senate has now confirmed five judges during the 112th Congress. There are six nominees awaiting votes on the Senate floor, and four more nominees will likely be reported out of the Judiciary Committee to the floor tomorrow morning.
During the first two years of President Obama’s term, an attitude has developed that the president’s nominees are routinely stalled or filibustered in the Senate, and that there’s nothing that can be done about it. To be sure, the Republican minority in the Senate has launched an unprecedented number of filibusters, and has run out the clock on dozens of nominees. But that’s only part of the story.
In today’s New York Times, Jonathan Bernstein looks at whether there’s more that the Obama Administration could be doing.
For one thing, the president has named only nine judges for the 17 appeals court vacancies and only 41 judges for the 85 open district court seats. That’s significantly fewer nominations than Presidents George W. Bush or Bill Clinton had sent to Congress by this time in their first terms.
Moreover, unlike President Bush, President Obama has not used his bully pulpit to push for Senate confirmation of his nominations. Fairly or not, President Bush regularly lambasted Democrats for blocking an “up or down” vote on his nominees. Yet for all the recent chatter about a Republican-fueled judicial crisis, the president rarely speaks about the issue in public, and he didn’t mention it in his recent State of the Union address.
Of course, even if President Obama follows this course, there’s no guarantee that more judgeships will be filled. Bernstein goes on to highlight ways the Senate’s Democratic majority could smooth the confirmation process and overcome Republican obstruction, and reminds us that Republicans in the Senate were nearly indiscriminate in their efforts to block nominees.
Republicans in the Senate should uphold their new commitment to comity by allowing regular votes on nominees. During the last two years, Republicans have regularly used procedural tactics, secret holds, and threats of filibusters to stall, block, or derail dozens of qualified nominees.
Bernstein’s op-ed is a reminder that everyone – Senate Democrats, Republicans, the White House, judges, lawyers, reporters, and the general public – needs to take a more active interest in the growing crisis in the judiciary.
You can read the entire piece here.
This morning’s Washington Post ran a front page, above-the-fold article entitled “Federal judicial vacancies reaching crisis point.” The Post reported that “Federal judges have been retiring at a rate of one per week this year, driving up vacancies that have nearly doubled since President Obama took office. The departures are increasing workloads dramatically and delaying trials in some of the nation’s federal courts.”
The article contains several notable quotes from judges in overburdened districts. Chief Judge Roslyn O. Silver of the District of Arizona—which was declared a judicial emergency several weeks ago—described a “dire situation” in her district. Similarly Chief Judge Michael McCuskey of the Central District of Illinois said that he “had a heart attack six years ago, and my cardiologist told me recently, ‘You need to reduce your stress.’ I told him only the U.S. Senate can reduce my stress” by confirming more judges in his district. Additionally, the Chief Judge of the Ninth Circuit Court of Appeals, Alex Kozinski, said that as litigants have to wait up to three years in resolving discrimination claims, corporate disputes and other lawsuits, “people will lose faith in the rule of law. We as a nation believe that if you have a dispute, you go to court and within a reasonable period of time, you get a decision.” Judges Silver and McCuskey are Clinton appointees and Judge Kozinski is a Reagan appointee. The article also quotes White House Counsel Bob Bauer, responding in part to the article’s criticism that the Administration has been slow in making judicial nominations. Bauer says that the courts face “a severe problem,” and that the White House will move nominees “at a very steady clip… We will use all the resources at our disposal to bring attention to the issue and work on a bipartisan basis.”
Last night the Senate took a promising first step in returning to regular order on judicial nominees by confirming its first three judges: Paul Holmes to the United States District Court for the Western District of Arkansas by a vote of 95-0; Diana Saldana to the United States District Court for the for the Southern District of Texas by a vote of 94-0; and Marco Hernandez to the United States District Court for the for the District of Oregon by unanimous consent. Eight other nominees—all of whom were reported out of the judiciary committee without opposition—are also pending on the Senate calendar and should be confirmed without delay.
The full Post article is available here
Due to a shortage of judges, Arizona’s chief federal judge has declared a judicial emergency for the entire District of Arizona, which would allow courts to delay criminal trials for up to six months.
Arizona’s federal courts were already overburdened by the combination of a 65% increase in criminal cases over the last two years and two unfilled judicial vacancies before Judge John M. Roll was killed in the Jan. 8 attack that also severely injured Rep. Gabrielle Giffords. The emergency declaration could delay the trial of Jared Lee Loughner, who entered a not-guilty plea in a Phoenix federal courtroom Monday on charges related to the shooting of Giffords and two of her staffers.
A judicial emergency is a rarely used tool to suspend the demands of the Speedy Trial Act—which requires quick trials in criminal cases—for 30 days. It was last used in the Southern District of New York after the Sept. 11, 2001, terrorist attacks. On Tuesday, the Judicial Council for the Ninth Circuit Court of Appeals, which includes Arizona, took the even rarer step of extending Judge Silver’s emergency declaration for a year, until February 2012.
Yesterday the Senate confirmed two long-obstructed district court nominees, Benita Pearson and William Martinez. After the Senate vote, Judiciary Committee Chairman Patrick Leahy (D-VT) remarked that “The obstruction of these district court nominations is unprecedented, a sign that a different standard is being applied to President Obama’s nominees that has never before been applied to the nominees of any President, Democratic or Republican…. It is time for the Senate to act on the dozens of judicial nominees that have been kept from final consideration before we adjourn. A number of those nominations were reported unanimously by the Senate Judiciary Committee.”
Twenty-four judicial nominations are still awaiting final confirmation votes. Eighteen of the nominations were reported by the Judiciary Committee unanimously. Two additional nominations received the support from a majority of Republican Senators on the Judiciary Committee. Of the 24 nominations pending, 14 of them are to fill vacancies designated as “judicial emergencies” by the nonpartisan Administrative Office of the U.S. Courts.
For the most up to the date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project website.
This weekend the Senate confirmed 8 judicial nominees:
- Albert Diaz to the Fourth Circuit Court of Appeals (voice vote)
- Raymond Lohier to the Second Circuit Court of Appeals (92-0)
- Ellen Lipton Hollander to the District of Maryland (95-0)
- Edmond E-Min Chang to the Northern District of Illinois (voice vote)
- Leslie E. Kobayashi to the District of Hawaii (voice vote)
- Carlton W. Reeves to the Southern District of Mississippi (voice vote)
- Denise Jefferson Casper to the District of Massachusetts (voice vote)
- Susan Richard Nelson to the District of Minnesota (voice vote)
With the confirmations of Judges Diaz and Lohier, the Blog of the Legal Times reported that “The U.S. Court of Appeals for the 2nd Circuit again has a majority of active judges appointed by Democratic presidents,” and the 4th Circuit now will now “have a 9-5 Democratic majority.”
With these new confirmations, there are now 26 nominees who are awaiting final votes on the Senate floor.
For the most up to the date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project website.
Opponents of the government’s “Don’t Ask, Don’t Tell” policy won their second legal victory in a month last week when a federal judge in Washington state ordered the Air Force to reinstate Maj. Margaret Witt, a decorated, lesbian flight nurse. Judge Ronald Leighton, following a six-day trial, ruled that the nurse’s discharge advanced no legitimate military interest and in fact both hurt morale in her unit and weakened her unit’s ability to carry out its mission.
Sarah Dunne, legal director of the ACLU of Washington, which represented Maj. Witt, said that the ruling established an important precedent in the Ninth Circuit by requiring the federal government to prove that soldiers discharged under the policy undermined military effectiveness:
“If [servicemembers discharged in the Ninth Circuit choose to do so], they’ll have an opportunity to go to court and show that their sexual orientation had no effect, no negative consequence on their unit or the military’s ability to do their mission or do their job.”
In the other case decided in the last month, a federal judge in California ruled that “Don’t Ask, Don’t Tell” policy violates the First Amendment rights of lesbians and gay men, and that it has had a “direct and deleterious effect’’ on the military.
These recent decisions highlight the federal judiciary’s role in ensuring equal protection under the law and President Obama’s responsibility to nominate judges who will uphold that principle. There are currently eighty-four vacant district court judgeships across the country, presenting President Obama with an opportunity to do just that.
For a full breakdown of judicial selection during the Obama Administration, see the Alliance for Justice’s recent report, Judicial Selection During the Obama Administration: The First 20 Months, which is available on our website at http://www.afj.org/check-the-facts/nominees/afj-report-state-of-the-judiciary-obama-at-20-months.pdf.
 Gene Johnson, Judge orders lesbian reinstated to Air Force, Seattle Post-Intelligencer, Sept. 24, 2010, available at http://www.seattlepi.com/local/6420ap_us_gays_in_military.html.
 Igor Volsky, Witt Says She’s Ready To Return To Air Force, ACLU Hopes More Soldiers Will Now Challenge Discharges, Thinkprogress.com, http://wonkroom.thinkprogress.org/2010/09/27/witt-msnbc/.
 Phil Willon, Judge declares U.S. military’s ‘don’t ask, don’t tell’ policy openly banning gay service members unconstitutional, L.A. Times, Sept. 9,. 2010, available at http://latimesblogs.latimes.com/lanow/2010/ 09/federal-judge-declares-us-military-ban-on-openly-gay-service-members-unconstitutional-.html.