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.
Every 10 years, the U.S. Census Bureau conducts a census to count the number of people in the United States. The decennial census is conducted on Census Day, and the next one is exactly one year from today – April 1, 2020. But while civil rights groups are fighting to ensure every person is counted, Michael Park, a partner at Consovoy McCarthy (which one commentator described as “the go-to legal shop for conservative ideologues looking to fight everything from voting rights to affirmative action to abortion”) has been fighting to ensure 6.5 million people are not counted. And this effort appears to have helped earn him a prestigious nomination to a powerful federal court, the Second Circuit Court of Appeals.
The data the census collects is critical. The information determines representation in the House, and it is used to allocate billions of dollars in federal funds, including critical money for education, health care, economic development, and transportation.
Unfortunately, the Republican Party (which has repeatedly engaged in racial gerrymandering and partisan redistricting to make it harder for people of color, Latinos, Native Americans, young people, and the economically disadvantaged to have their vote count) is now also trying to rig the census: The Trump Administration is trying to add a question to the 2020 census asking U.S. residents to disclose if they are citizens.
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 April 10, 2018, President Trump nominated Allen Winsor to the U.S. District Court for the Northern District of Florida. Winsor, a current justice on Florida’s First District Court of Appeal, previously served as Solicitor General of Florida from 2013 to 2016, under Attorney General Pam Bondi. In that capacity, he defended several troubling laws, including repeated efforts in Florida to dilute the vote of persons of color and make it harder for Floridians to vote. He also advanced efforts to erode reproductive rights and marriage equality, as well as supported questionable practices as the state carried out the death penalty.
As the Senate Judiciary Committee reviews Winsor’s controversial positions and activities during government service, it is worth noting current committee Chairman Chuck Grassley’s statement in opposing Caitlin Halligan, then Solicitor General of New York, to be a judge on the D.C. Circuit: “Some of my colleagues have argued that we should not consider this aspect of [Caitlin] Halligan’s record, because at the time she was working as the Solicitor General of New York. But, no one forced Ms. Halligan to approve and sign this brief.”
Like a vast majority of Trump’s nominees, Winsor is a member of the Federalist Society.
Alliance for Justice has prepared this blog to highlight areas of Winsor’s record, based on our review thus far, in which we believe greater scrutiny by the Senate is warranted. Click here to read our opposition letter.
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?
The vast majority of President Trump’s nominees for lifetime federal positions raise all sorts of concerns about whether they will uphold our rights and make judgments based on evidence rather than prejudice. Michael Truncale, named to the U.S. District Court for the Eastern District of Texas, is on that list.
Truncale, who came in third in a 2012 Republican congressional primary in Texas, calls himself a “conservative by conviction, not by convenience.” He has made a number of noteworthy comments, from topics ranging from the judiciary, education, the Affordable Care Act, reproductive rights and immigration policy. Read more
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
I resist the proclamation’s talk of “glass ceilings,” pay equity (an allegation that some studies debunk), the need to place kids in the care of rented strangers, sexual discrimination/harassment and the need generally for better “working conditions” for women (read: more government).
Don Willett, nominee to the Fifth Circuit Court of Appeals, objecting to draft proclamation of then-Governor George W. Bush honoring the Texas Federation of Business and Professional Women
Despite repeated attempts to meld the two into one “right side of history” campaign, the Sexual Revolution is not the Civil Rights Movement….The “Sexual Revolution,” “was rooted in the soil of elitist postmodern philosophy, spearheaded by secular libertines, and was essentially ‘radical’ in its demands.” “It sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults. In this way, the Sexual Revolution was more like the French Revolution, seeking to destroy rather than restore.
Matthew Kacsmaryk, nominee to the Northern District of Texas
During the presidential race, Donald Trump’s campaign was littered with sexist comments and misogynistic behavior. He bragged about getting away with sexual assault in his Access Hollywood tape, talked about “blood coming out of [Megan Kelly’s] wherever,” and insulted fellow candidate Carly Fiorina’s appearance. 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
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.
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?
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.
Over the weekend, Eastern District of Texas Judge Michael Schneider announced that he’ll leave active duty and take “senior status” in January 2016. By providing over four-months’ notice, Judge Schneider gave the Texas senators charged with finding his replacement an opportunity to do what they have never done before: fill a judicial vacancy before the judge actually steps down and further weakens an already strained justice system. Avoiding the disruption of a vacancy is, after all, the whole point of giving advance notice. In other states, senators often begin working on a vacancy as soon as it’s announced. But not Senators John Cornyn and Ted Cruz. Instead, they have watched vacancies pile up—ignoring, in some cases, more than a year of notice. They have refused to take action until a judge has left the bench, or even long afterward.
Nine Texas federal district judges have stepped down while Cornyn and Cruz have been in office. In each case the judge left before the senators even asked candidates to submit applications. That slow-motion process is contrary not just to common practice nationwide, but to the precedent John Cornyn himself established when fellow-Republican George W. Bush was in office. When Cornyn and Republican Kay Bailey Hutchison served in the Senate under President Bush, five Texas judges gave advance notice of their departure, and for all five the senators recommended replacements well before the vacancies became current. For three of the seats, President Bush was able to make a nomination before the outgoing judge left the bench.
With Cornyn and Cruz dragging their feet under President Obama, Texas has become the epicenter of a growing judicial vacancy crisis. Including two seats on the Fifth Circuit, Texas has nine current judicial vacancies (the most of any state in the country), three of which have been vacant for over two years. Seven of the vacancies are officially designated “judicial emergencies” because of crushing caseloads and desperately needed judges. The extraordinary number of vacancies requires Texas’s remaining active judges to travel—sometimes for hours—to help neighboring courts manage their dockets.
Texas has been in dire need of more judges for years, but Judge Schneider’s vacancy in particular should provide extra incentive for Cornyn and Cruz to avoid delay and take immediate action. The Eastern District of Texas is the second busiest court in the country. It’s so overburdened that the Judicial Conference of the United States called for adding two new judgeships, in addition to filling existing vacancies.
What’s more, the courthouse in Tyler, Texas, where Judge Schneider presides, is already down one judge due to the recent retirement of Judge Leonard Davis. Judge Davis provided almost a year’s notice before retiring in May 2015, and explained in his retirement letter that, without a swift replacement, it would be difficult for the remaining judges to “continue to fulfill their constitutional responsibilities to the citizens of East Texas.” The Tyler Area Chamber of Commerce and Tyler Economic Development Council also urged Cornyn and Cruz to ensure the “swift appointment of [Judge Davis’s replacement] so as to assure the unbroken federal judicial presence in Tyler.” Yet despite these pleas from those most affected by vacancies—the people and businesses who rely on courts to provide justice, and the judges who must work longer and harder to meet growing caseloads—Cornyn and Cruz continue to play politics with the courts, and have not yet started the process to find Judge Davis’s replacement.
Senator Cornyn says he “work[s] . . . to fill openings as they arise,” but he and Senator Cruz can do much better by looking for replacements before they are needed. Judge Schneider’s vacancy could be yet another blow to a court system that for years has been pummeled by a barrage of new vacancies, or it could signify a turning point for Texas courts. Senators Cornyn and Cruz have a choice: let the Texas vacancy crisis grow even worse, or start looking for the judges Texans desperately need.
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.
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.
We recently chronicled the glacial pace of judicial confirmations under the leadership of Senate Judiciary Chairman Chuck Grassley. Yet, despite the slow start, Senator Grassley has already shifted his sights—to shutting down judicial confirmations altogether.
In comments today at the National Press Club, Senator Grassley said of judicial nominations: “Come July of 2016, probably they’ll be cut off and not approving any . . . It’s just kind of tradition.”
But this “tradition” is one of Grassley’s own making. Presidents regularly have district and circuit court nominees confirmed after July 1 of their final year in office. President Clinton had nine in 2000. President George W. Bush had 14 in 2008. And in each case the president faced a Senate controlled by the opposition party.
More importantly, President Clinton’s and Bush’s nominees were treated fairly throughout their final two years in office, when they had 73 and 68 judicial nominees confirmed, respectively. In the first four months of his final two years, President Obama has had two.
Senator Grassley is making it clear he’s committed to obstructing the confirmation process from the beginning to end of this term—and now he wants the end to come sooner than expected.
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 little over a week into the new Congress, and Senate Judiciary Chairman Chuck Grassley, R-Iowa, has already begun laying the groundwork to limit the number of President Obama’s judicial nominees the Senate will confirm.
As we detailed earlier this week, presidents have historically continued filling judicial vacancies even with an opposition Senate in their final two years of office. On average, 20 percent of a president’s total judicial confirmations—which would be 76 judges for President Obama—are confirmed in the final two years of office.
The Senate has not yet confirmed any nominees this year. Nonetheless, in a recent article, a Grassley spokeswoman said that the Senator has already started tallying his confirmations for the 114th Congress, presumably to limit the number of additional nominees the Senate will confirm.
Under Grassley’s version of new math, the current Senate has already confirmed 11 judges. Grassley counts these judges even though they were reported out of committee and confirmed not in the current Senate, the one in which Republicans are in the majority, but by the last Senate during its “lame duck” session.
Of course, these confirmations were not the accomplishments of Senator Grassley or Senate Republicans. In fact, Senator
Grassley delayed the confirmations for which he now seeks credit and opposed confirming any nominees reported out of committee during the lame duck session. Senate Republicans even blocked their own states’ nominees and forced Democratic leadership to file cloture motions on uncontroversial judges, all while many argued that confirmations should be shut down entirely during the lame duck.
Manipulating confirmation numbers and claiming credit where it isn’t due does nothing to fill the 44 current judicial vacancies and many more (25 already announced) that will open in 2015. It does nothing for people living in Pennsylvania and Texas, where numerous, longstanding vacancies and rising caseloads have left individuals waiting in line for justice.
Iowa’s largest newspaper has called on Senator Grassley to end obstructionist policies and confirm qualified judges to the bench, and Grassley himself has promised to hold hearings soon on pending nominees. We hope he chooses to do so.
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.
The Senate ushered in the rules reform era by confirming Patricia Millett and Nina Pillard, two nominees to the D.C. Circuit Court of Appeals. The Senate is expected to confirm President Obama’s other D.C. Circuit nominee, Judge Robert Wilkins, before the December recess. This is great news for our federal judiciary and the administration of justice, but Republicans and conservative commentators are still trying—cynically and disingenuously—to make you believe otherwise.
Once the Senate changed its rules, the D.C. Circuit nominees were all but assured confirmation, and their extremist opponents were left with little recourse. So they’re getting desperate. One tactic has been feigned concern over the “judicial emergencies” that exist in various federal courts around the country. Courts have “judicial emergencies” when, because of vacancies, there simply aren’t enough judges to handle the caseload. There are 38 judicial emergencies as of this writing, 17 of which do not have a pending nominee. So why, the Republicans ask, are the Democrats “wasting” time on D.C. Circuit vacancies when there is more of a need elsewhere? Just yesterday, Minority Leader Mitch McConnell, R-Ky., took to the Senate floor to deride Majority Leader Harry Reid, D-Nev., for making the “choice to spend the week on nominations that are not emergencies.”
The right-wing Judicial Crisis Network (formerly known, when it was created during the Bush Administration, as the Judicial Confirmation Network), has been a principal peddler of this view. Its Chief Counsel Carrie Severino has argued further that blame for these emergencies cannot be levied on Republican obstruction, because any use of the filibuster has “had nothing to do with perpetuating judicial emergencies.”
But this argument ignores the fact that obstruction begins long before a nominee reaches the Senate floor, and therefore before the filibuster—the very last hurdle before a confirmation vote—could even be used. Crying foul on judicial emergencies in this way is as absurd as shutting down the government to protest affordable healthcare, and then accusing the Democrats of denying funds to cancer patients when NIH can’t open its doors. (Of course, the Republicans did that too.) Republican Senators have used every delay tactic at their disposal to prevent the President from appointing federal judges in their home states, and the unsurprising result is a growing list of judicial emergencies for which Republicans turn around and blame the President.
Consider the 17 judicial emergencies for which there is no pending nominee. At least 10 of those emergencies can be traced directly to obstruction by home state Republican Senators.
● Six of these emergencies are in Texas—one, in the Western District, is five-years-old—where Senators John Cornyn and Ted Cruz, (and before Cruz, Kay Bailey Hutchison) neglected vacancies for years before finally convening a selection committee that has yet to name finalists.
● In Georgia, Senators Saxby Chambliss and Johnny Isakson are holding Eleventh Circuit nominee Jill Pryor hostage, and demanding a ransom of Republican nominees to fill three emergency vacancies. Pryor would fill a judicial emergency herself if Chambliss and Isakson simply gave their OK.
● In 2010, President Obama nominated law professor Victoria Nourse to fill what is now a judicial emergency on the Seventh Circuit. Nourse had been selected by a Wisconsin selection commission and approved by Wisconsin’s senators at the time. But then newly-elected Republican Sen. Ron Johnson declined to give his support, and her nomination died in 2011.
It’s enough to make you wonder: Why are these Republican Senators spending so much time opposing D.C. Circuit nominees while so many judicial emergencies fester unattended?
There are also 21 judicial emergencies for which a nominee is pending right now, so there is no question that the president has done his duty to put forth nominees for the Senate to confirm. But in eight of these cases, Republican Senators are obstructing by withholding their “blue slips”—a signal of approval—for each nominee. By Senate tradition, a nomination can’t proceed without a blue slip. One of these emergencies is in the Eastern District of North Carolina, which has the single longest district court vacancy in the entire country—the judgeship has been vacant for 2,904 days.
Finally, the Republican judicial emergency argument relies on the false premise that confirming D.C. Circuit judges and filling judicial emergencies are mutually exclusive. In fact, there are eight nominees for judicial emergencies pending on the Senate floor right now, waiting for a vote. Reid filed cloture petitions on three of them Monday night, rendering McConnell’s claim about “spend[ing] the week on nominations that are not emergencies” patently false. If the Republicans were genuinely concerned about judicial emergencies, they would agree to immediately confirm the nominees already on the floor. Instead, they are using every minute of debate time allowed for every nominee Reid wants to confirm before the December recess. This led to a confirmation vote for Nina Pillard at about 1:00 a.m. this morning, and will likely keep the Senate in session through the night, into the weekend, and maybe even through the holidays. The confirmations are all a foregone conclusion, but the Republicans do not care. They are stalling for spite, and for revenge.
It’s clear who really doesn’t care about judicial emergencies
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.
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.
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.
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.
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.
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.
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.”
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 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.
For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Project webpage.
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.
The Senate Judiciary Committee today held hearings on the nominations of Stephanie Dawn Thacker to the United States Court of Appeals for the Fourth Circuit and of Michael Walter Fitzgerald, Ronnie Abrams, Rudolph Contreras, and Miranda Du to serve as United States District Judges in the Central District of California, the Southern District of New York, the District of Columbia, and the District of Nevada, respectively.
If confirmed, Fitzgerald and Du will both be filling vacancies that have been deemed “judicial emergencies” by the Administrative Office of the U.S. Courts. Senator Dick Durbin (D-IL) presided over the hearings; also in attendance were committee members Senator Mike Lee (R-UT) and Senator Chris Coons (D-MD).
With 108 vacancies in our federal courts, 32 of them judicial emergencies, the Senate should move swiftly to put these well-qualified 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 May–August 2011: Judicial Nominations in the 112th Congress.
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.
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.
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.
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.
For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.
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.
For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.
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.
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, 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.”
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.
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.
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.
Yesterday White House Counsel Bob Bauer called on the Senate to allow a vote on President Obama’s judicial nominees in order to address the growing judicial vacancy crisis. At a forum sponsored by the American Constitution Society, Bauer called the current rate of confirmations “perilously low” and stated that the Senate’s failure to fill vacancies is overwhelming court dockets in a way that threatens the quality of justice.
Currently, 101 of the 875 federal judgeships in the United States are vacant. Bauer stated that more than half of the jurisdictions with a vacancy have been declared judicial emergencies because the court cannot handle its current caseload. He argued that the vacancies result in “egregious delays for Americans seeking their day in court around the country.”
Bauer blamed Senate rules that allow individual senators to wage a political “cold war” to avoid an up-or-down vote on Obama’s nominees. He argued that a senator’s personal preference for a different nominee is insufficient justification for denying the president’s nominee a vote, and that senators who engage in delaying tactics should pay a greater political price for doing so. Bauer lamented the lack of political accountability for senators, stating that “the costs have become bearable” and that “the loss of the quality of justices has somehow come to seem not to matter.”
For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project website.
Yesterday the Alliance for Justice applauded President Obama’s renomination of 42 judicial nominees who were returned to him at the end of the last Congress. Twenty-three of the 42 nominees would fill seats that are considered “judicial emergencies” by the administrative office of the U.S. Courts, and many of the 42 nominees have the strong support of their state’s Republican senators. The Senate should quickly reprocess all of these nominees through the Judiciary Committee, and then confirm them on an expedited basis. There are currently 114 current and future vacancies to lifetime federal judgeships, so confirming these nominees would help alleviate the significant vacancy crisis in our courts.
For the most up to the date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project website.
Last night the Senate confirmed four of the 38 judicial nominees pending on the senate floor: Kimberly Mueller, nominee to the Eastern District of California, James Bredar, nominee to the District of Maryland, Catherine Eagles, nominee to the Middle District of North Carolina, and John Gibney, nominee to the Eastern District of Virginia.
‘Regan Lachapelle, a spokesperson for Senate Majority Leader Harry Reid said that the four confirmations Thursday are “just a start” to clearing the backlog during this session.
“We are still working through the list and are committed to confirming as many judges as we can,” said Lachapelle. “We’ll take them when we can get them.’
There are still 34 nominees who are awaiting final confirmation votes, including Goodwin Liu, Ed Chen, Louis Butler, and Jack McConnell. For the most up to the date and comprehensive information on judicial nominations, visit the Alliance for Justice’s website.
Today, U.S. District Judge Roger Vinson ruled that the lawsuit seeking to overturn healthcare reform can proceed. Led by Florida and joined by 19 other U.S. states, the suit against reform claims that the law is unconstitutional because it requires citizens to obtain coverage, among other issues. For everyone who worked in the progressive community to ensure that healthcare legislation passed, let this be a warning that Conservatives will do everything in their power to overturn the legislation, and that their decades’ long efforts to pack the federal judiciary with right-wing conservatives who favor corporate interests over the American people will aid them in their effort.
This case is headed to the Supreme Court, which has demonstrated a strong bias toward big business. Progressives need to learn what conservatives have known for decades – the courts matter. With President Obama’s nominees for federal judgeships currently stalled in the Senate, the risks to the progressive agenda grow on a daily basis. The Senate needs to act and confirm judges who will stand for equal justice for all, not just the powerful.
Ashby Jones with the Wall Street Journal has an extensive run-down of the case which will be heard on December 16th.
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.
It’s official, Congress has left for recess without confirming a single judicial nominee before breaking for the election. This comes at a time when many (including Attorney General Holder) are decrying the current vacancy crisis in our courts, and when confirmation rates are already at an all-time low. In a statement earlier today, AFJ President Nan Aron expressed disappointment with the Senate:
“The Senate’s failure to move forward without confirming any judicial
appointments before the election recess is extraordinarily disappointing and
reflects an astonishing lack of urgency about the well-documented judicial
emergencies in our courts.”
Last week, we launched a campaign asking many of you to contact your Senators to urge for votes on the 23 judicial nominees currently awaiting final confirmation. We thank you for your efforts, and hope that you will be ready to renew the fight when Congress returns in November. We need to maintain the sense of urgency in the Senate and must not let our justice system fall prey to these political games. Keep the pressure up on your own Senators over the break, whether at town hall meetings, campaign events, or fundraisers, make it clear that the judiciary is a priority.
On Thursday, the Senate Judiciary Committee sent seven more of President Obama’s judicial nominees to the full Senate for a final vote. They are joining 16 others currently stuck in procedural quicksand, blocked from confirmation by an intractable and shameless Republican minority.
The clock is ticking, though, on breaking the logjam and getting a vote on any of them before the Senate heads for the exits to go home and campaign. Sadly, it’s our badly overburdened judicial system that’s getting trampled as Congress rushes out the door.
There has always been a political aspect to the nomination of judges, especially at the appellate level. It’s a natural consequence of a process that requires Senate confirmation. But today we are facing unprecedented obstruction from Republicans that crosses the boundary from the acceptably political to an outright assault on long-standing traditions and, more importantly, on the functioning of the federal judiciary itself.
The evidence for how bad things have gotten is spelled out in Alliance for Justice’s new report on judicial nominations that covers the Obama Administration’s first 20 months in office.
The report shows that President Obama has seen a smaller percentage of his nominees confirmed at this point in his presidency than any president on history. Nominees are held up with secret holds, even those from states where Republican Senators support them. Uncontroversial nominees are reported out of the Judiciary Committee unanimously or with very little opposition, but then are put into the procedural deep freeze and denied a final vote, often for months. Republicans who voted for the nominees in committee then turn around and participate in a deliberate strategy to prevent them from actually taking their seat on the bench. It’s getting hard to tell if these are judicial appointees or hostages.
Obviously, the Republicans’ desire to obstruct is not based on concerns about qualifications, or, in some cases, even ideology. It’s just naked, unabashed obstruction for obstruction’s sake. This is a new level of crass political theater that has never before been applied broadly to all judicial nominees, especially those at the district court level. Senator Sheldon Whitehouse in yesterday’s hearing talked about this trashing of long traditions of Senate behavior, reminding the committee (apparently to no avail), “that when the two home state Senators approved a nominee, when it cleared the background check, and when it cleared the committee, they got a straight up or down vote on the senate floor without procedural obstruction, period…. By erecting a blockade of procedural obstruction for district court nominees …it is a new threshold that we will cross.”
But there’s more to this than just political squabbling. There is a genuine crisis in the federal courts. Every time a judicial appointment is delayed, a courtroom remains without a judge.
There are now 49 official “judicial emergencies” in 22 states, where there simply aren’t enough judges to hear the cases that have been filed in a timely manner. Thousands of plaintiffs and defendants, many of whose lives and livelihoods depend on the outcome of their case, face long delays. If the principle that “justice delayed is justice denied” is true, then it must be said that Republicans are contributing to the undermining of American justice itself. They may think they’re punishing President Obama with their shenanigans, but the collateral damage extends to the American people who are entitled to their day in court.
With the Senate clock ticking away, 23 nominees are waiting for a vote and 23 courts are waiting for a judge.
Perhaps before Senators go home to ask voters to re-elect them, they should do what they were elected to do in the first place and perform their constitutional duty of fully staffing the federal courts.
This afternoon, by a vote of 77-20 the Senate confirmed Judge Thomas Vanaskie to a seat on the United States Court of Appeals for the Third Circuit. Thomas Vanaskie has been a judge on the United States District Court for the Middle District of Pennsylvania since 1994, and from 1999 to 2006 he served as the district’s chief judge. Today, Senator Specter (D-PA) took to the floor to praise Vanaskie as highly qualified, and urged his colleagues to support his confirmation. He was nominated to the Third Circuit by President Obama on August 7, 2009. Even though he was voted out of the Senate Judiciary Committee by a vote of 16-3 in December, he has waited over four months for final confirmation.
The Senate is scheduled to vote on the nomination of judge Denny Chin to a seat on the United States Court of Appeals for the Second Circuit tomorrow. While this movement is positive, it is only a drop in the bucket compared to the outstanding nominations awaiting final confirmation. Despite the fact that Jane Stranch, who was nominated on the same day as Vanaskie to the Sixth Circuit, has support from both home state Republican Senators, and was voted out of committe with a bipartisan vote of 15-4, she has yet to be scheduled for a vote even though she has waited nearly 260 days for confirmation. Also awaiting confirmation are Circuit Court nominees Alberto Diaz, and James Wynn in addition to 20 district court nominees.
Yesterday, in an effort to alleviate the slow pace of confirmations for both judicial and executive nominees, Senators Whitehouse (D-RI) and McCaskill (D-MO) took to the floor to call out the anonymous holds by the GOP that continue to obstruct the confirmation process. This video, from the Huffington Post speaks for itself:
Democratic Senators took to the floor of the Senate today to protest the unprecedented level of obstruction towards nominees by their Republican colleagues.
The Obama administration has 64 nominees pending in the Senate.
There are currently 6 circuit court nominees awaiting a final confirmation vote:
• Jane Stranch and Thomas Vanaskie were nominated on August 6, 2009: pending 218 days
• Denny Chin and Rogeriee Thompson were nominated on October 6, 2009: pending 157 days
• Alberto Diaz and James Wynn were nominated on November 4, 2009: pending 128 days
Over half of Bush’s nominees were confirmed by either unanimous consent or voice vote. In this Congress, Republicans have required cloture votes on uncontroversial nominees such as as Barbara Keenan for the 4th Circuit Court of Appeals who was ultimately confirmed by a vote of 99-0.
That’s right, 99-0. The same people who requested the vote did not even voice opposition.
They are stalling not on the basis of the nominees’ records or qualifications, but simply to obstruct Obama’s nominees. In addition to Keen, there is the example of Judge Greenaway, despite the fact that he was reported out of committee unopposed and was confirmed without opposition, he had to wait 235 days—almost eight months—for a final vote where he was confirmed 84-0. Jane Stranch and Thomas Vanaskie are rapidly approaching that same timeline, both have been waiting 218 days.
There are currently 102 federal court vacancies, and according to the Senate Judiciary Committee, 31 of those vacancies are classified as “judicial emergencies” because of the size of the caseload in the court or the amount of time a seat has sat empty.
Senator Franken (D-MN) summed it up well during his speech on the Senate floor today:
After the State of the Union when President Obama criticized Republican Senators for obstructionism, saying “The confirmation of well-qualified public servants should not be held hostage to the pet projects or grudges of a few individual Senators.” We have decided to start a new series titled “American Idle” chronicling the nominees who have been or are currently being held hostage in the Senate.
On Wednesday, Alliance for Justice blasted Senate Republicans for holding hostage a highly qualified and uncontroversial nominee. Unopposed in the Senate Judiciary Committee, Judge Joseph Greenaway was nominated by President Obama to the Third Circuit Court of Appeal on June 19, 2009. A “hold” has been placed on his nomination.
Before his appointment to the United States District Court in New Jersey by President Clinton in 1995, Greenaway served as a litigator, prosecutor and in-house counsel. While on the federal bench, Judge Greenaway amassed a record and a reputation for taking the facts of each case one by one, without professing allegiance to a larger interpretational framework or ideology, and a willingness to both examine the nuances of individual cases and engage larger constitutional issues.
If confirmed, Judge Greenaway would be only the 15th judge confirmed since the beginning of this Congress.
Although President Obama has nominated highly qualified attorneys and judges to the federal bench, Republicans have consistently responded by either delaying the votes or outright attacking individual nominees. Republican senators have threatened filibusters or used the practice of putting a “hold” on a nominee to prevent up-or-down votes from taking place.
To his credit, Senator Leahy (D-VT), Chair of the Senate Judiciary Committee, has held prompt hearings on all of President Obama’s nominees. But, as a result of abandoning the tradition of challenging only highly controversial nominations, Republicans indefinitely blocked votes on the floor even though many nominees were reported out of committee months earlier. Complicating matters further, Senate Majority Leader Harry Reid (D-NV), struggled to find the floor time needed to overcome filibuster threats, which take an entire day of Senate floor time, while the Chamber was mired in health care reform.
By the end of December, the Senate had voted on only 13 nominees. By comparison, in President George W. Bush’s first 17 months, the Democratically-controlled Senate, with Senator Leahy chairing the Judiciary Committee, confirmed 100 nominees.
Republicans are abusing Senate rules and are again putting politics ahead of placing qualified judges who will uphold our constitutional values on our nation’s courts. It is time for Republicans to put the needs of Americans above their partisan politics, their hypocrisy has already delayed justice for too long.
This week, the Senate Judiciary Committee held a hearing on two judicial nominees, Judges Alberto Diaz and James A. Wynn, Jr. both nominated to the Fourth Circuit Court of Appeals. The committee decided to wait until Christmas Eve to vote on the nomination of Judge O. Rogeriee Thompson to the First Circuit Court of Appeals.
As of today, the Senate has confirmed 11 federal judges, including Supreme Court Justice Sonia Sotomayor. By December 17, in the first years of both the Clinton and George W. Bush administrations each had 27 federal judges confirmed.
We have previously pointed out the slow pace of judicial selection in the first year of the Obama administration. Not much has changed since then.
There is still time before the recess for the Senate to vote on the nominations that have cleared the Judiciary Committee. Yesterday, Senator Leahy (D-VT) called on his colleagues to vote on these nominees:
“I hope Senate Republicans will lift their objections, and allow us to proceed on the 27 nominations reported by the Judiciary Committee. Absent cooperation to confirm nominations, this Congress will be recorded in history as one of the least productive in the confirmation of judicial nominations. I hope the New Year will bring a renewed spirit of cooperation.”
The president must nominate and the Senate must confirm judges who will be strong voices for upholding the Constitution and the law to provide equal justice and protect personal freedoms for everyone in America.
As we mentioned earlier this week, we are now providing data on judicial selections more frequently. Here is this week’s update:
On Tuesday, the Senate confirmed Jacqueline Nguyen to a seat on the United States District Court for the Central District of California by a vote of 97 to 0. Judge Nguyen, previously a Superior Court Judge for the County of Los Angeles, is the first Vietnamese American to serve as an Article III judge in our nation’s history. She is the seventh Obama district court nominee to be confirmed.
Also on Tuesday, the Senate Judiciary Committee held a hearing on the nomination of O. Rogeriee Thompson to the United States Court of Appeals for the First Circuit. There were no Republican committee members present at the hearing. If confirmed, Thompson would be the first African American and the second woman to serve on the First Circuit.
On Thursday, the Senate Judiciary Committee advanced Thomas I. Vanaskie, nominee to the United States Court of Appeals for the Third Circuit, to the full Senate by a vote of 16-3, with Grassley (R-IA), Coburn (R-OK), and Cornyn (R-TX) voting no. The committee also advanced Louis B. Butler, Jr., nominee to the United States District Court for the Western District of Wisconsin, to the full Senate by a party-line vote of 12-7.
On Thursday, the Senate Judiciary Committee held over votes on Denny Chin, nominee to the United States Court of Appeals for the Second Circuit, Rosanna Peterson, nominee to the United States District Court for the Eastern District of Washington, and William M. Conley, nominee to the United States District Court for the Western District of Wisconsin, until next Thursday.
This morning, President Obama announced three district court nominations: Nancy D. Freudenthal to the United States District Court for the District of Wyoming, D. Price Marshall Jr. to the United States District Court for the Eastern District of Arkansas, and Benita Y. Pearson to the United States District Court for the Northern District of Ohio.
Judicial Nominations Numbers
27 Nominations Overall (nominee last names in parentheses):
Breakdown by Court:
1 SCT: (Sotomayor)
3 CCA: (Lynch, Davis, Hamilton)
7 DCT: (Viken, Lange, Berger, Honeywell, Reiss, Kallon, Nguyen)
19 Nominees Pending:
Breakdown by Court:
9 CCA: (Thompson, Chin, Vanaskie, Greenaway, Keenan, Diaz, Wynn, Stranch, Martin)
10 DCT: (Jackson, Butler, Conley, Seeborg, Gee, Chen, Peterson, Freudenthal, Marshall, Pearson)
Breakdown by Status:
10 Nominees Pending in the Judiciary Committee:
4 CCA: (Thompson, Chin, Diaz, Wynn)
6 DCT: (Jackson, Conley, Peterson, Freudenthal, Marshall, Pearson)
9 Pending on the Senate Floor:
5 CCA: (Greenaway, Keenan, Stranch, Martin, Vanaskie)
4 DCT: (Seeborg, Gee, Chen, Butler)
97 Total Federal Court Vacancies:
20 Court of Appeals (“CCA”) Vacancies
77 District Court (“DCT”) Vacancies
0 Supreme Court (“SCT”) Vacancies
A new report on judicial selection in the first ten months of the Obama administration was released this week by Alliance for Justice.
“While Republicans play politics to stir up their base, more than 97 federal judgeships remain open,” said Nan Aron, president, Alliance for Justice. “America needs strong voices on our federal courts, upholding the Constitution and the law to ensure equal justice for all, not partisan games that delay putting highly qualified nominees on the bench.”
The report is an assessment of progress toward equal justice for all at the start of the Obama administration. The report’s findings show that not enough progress has been made, with only five federal judges confirmed by the Senate, 22 nominees pending, and 97 vacancies on the federal bench.
According to the report:
Resorting to the same old playbook of partisan politics, Republicans are obstructing the judicial nomination process as a last-ditch effort to maintain their hold over the judiciary and halt a return to a balance of power. They are also using attacks on Obama’s nominees as an opportunity to keep their base engaged. Americans deserve better than simple party politics, and it is time for the White House and Senate leadership to move expeditiously to nominate and confirm judges.
The report points out:
President Obama has nominated highly qualified attorneys and judges to the federal bench – and yet Republicans have responded by either delaying the votes or outright attacking individual nominees. Every Republican in the Senate signed a letter on March 4, 2009 about six weeks after President Obama took office, effectively appropriating to themselves the nominating power of the executive branch by vowing to block nominees whom they did not approve. Since then, they have carried out that threat.
Today the Senate Judiciary Committee held a hearing on 4 federal district court nominees all nominated to fill seats in California: While Senator Feinstein (D-CA) was scheduled to chair the committee, she ended up busy on the Senate floor and Senator Franken (D-MN) chaired today’s hearing. The four nominees: Jacqueline H. Nguyen to the Central District of California; Edward Milton Chen to the Northern District of California; Dolly M. Gee to the Central District of California; and Richard Seeborg to the Northern District of California represent a number of firsts and the hearing marks a historic day for Asian Americans.
The hearing room was packed with prominent members of the Asian American legal community, family of the nominees, and other supporters, a somewhat unusual occurrence for district court nominees, but expected given its historical significance. There was a noticeable feeling of pride among many of the attendees today surely due to the excellent qualification s of the nominees. Two have proven track records as sitting jurists, and all three of the Asian American nominees have strong support from the Asian Pacific American community in addition to bipartisan support from bar organizations and leaders in the legal community.
If confirmed, Edward Milton Chen would be the first Asian Pacific American district court judge in the history of the NDCA, (this is especially significant given that approximately 35% of the population in San Francisco is Asian Pacific American). Dolly M. Gee would be the first Chinese American female district court judge in the history of the United States, and Jacqueline H. Nguyen would be the first Vietnamese American district court judge in he history of the United States and the first Asian Pacific American female district court judge in California history.
In American history, there have been only four Asian American federal circuit court judges and 14 Asian American federal district court judges. Asian Americans are still significantly underrepresented on the federal bench. To learn more about Asian American federal judges, check out Alliance for Justice’s recently released fact sheet.
Well, the August recess is over, Congress is back in town and as we move into the last quarter of the year, it seemed like a good time to get a sense of the lay of the land when it comes to judicial nominations.
Just two days ago, the White House named Virginia State Supreme Court Justice Barbara Milano Keegan to a seat on the Fourth Circuit; she joins Judge Andre Davis of Baltimore as a nominee to that court. There are currently five vacancies on the Fourth Circuit; the bench, once a bastion of ultra-conservative jurisprudence, is now evenly-divided between Democrat and Republican appointees, particularly as a result of somewhat-unexpected departures of high-profile conservative judges like Michael Luttig, now general counsel at Boeing, and Chief Judge Karen Williams, who resigned just a few months ago for health reasons. An ideological shift on the Fourth Circuit could mean major and positive changes in not just civil rights and criminal cases, among other issues dealt with by courts around the country, but in issues relating to executive power and national security; the Fourth Circuit has jurisdiction over many cases relating to the Pentagon, CIA and terrorism policies.
The Fourth Circuit isn’t the only federal appeals court poised for a change: the Third Circuit is also evenly split. President Obama has named Joseph Greenaway and Thomas Vanaskie to fill the two vacancies on that court. (For more information on vacancies and nominees, please see our handy-dandy Federal Circuit Court Vacancies Chart.
Despite tapping the aforementioned nominees, as well as David Hamilton (Seventh Circuit), Gerard Lynch (Second Circuit), Beverly Martin (Eleventh Circuit) and Jane Stranch (Sixth Circuit), there are still 13 circuit court seats awaiting a nominee, as well as 63 district court seats (the president has named nine district court nominees; there are 72 total vacancies).
AFJ has prepared a fact sheet examining the pace of President Obama’s judicial nominations in comparison to President George W. Bush’s at the same time in his presidency. Currently, the disparity between the two is 68% to 38% on court of appeals nominees and 37% to 13% on district court nominees.
Clearly, numbers do not tell the whole story. The president and the Congress are confronting a number of critical issues, the economy and health care among them; they also had a Supreme Court confirmation to handle. However, the numbers can and should serve as a reminder that judicial nominations are also extremely important. Given that the decisions made by the men and women of the federal judiciary affect millions of Americans every day on issues ranging from civil and workers’ rights to environmental and consumer protections and a host of other topics, judicial nominations should not go by the wayside. A president’s nominees to the federal bench are, in many ways, his longest-lasting legacy. Justice John Paul Stevens has sat on the bench for more than 30 years and seven presidencies; Judge Manuel Real was nominated by President Johnson in 1966 and is still an active judge more than 40 years and nine presidencies later.
We’ve said it before and we’ll say it again: judges matter. As we move into the fall and winter of 2009, we urge the White House and the Senate to nominate and confirm highly qualified nominees who will uphold our core constitutional values.
With Justice David Souter retiring, President Obama has an opportunity to add to the Supreme Court a strong voice for upholding the Constitution to ensure equal justice and basic freedoms for all.
This is particularly urgent after eight years during which federal judges were appointed who put their own political agenda ahead of the Constitution, applying one set of rules for those at the top and another for the rest of us.
Republicans in the Senate cannot be allowed to obstruct the best possible nomination. Most of them will oppose any nominee regardless; little would be accomplished by choosing someone who will not be a strong voice for equal justice for all.
Many Republican senators, already on the defensive because their policies appeal to a rapidly shrinking number of voters, have said publicly on many occasions that they oppose the use of filibusters to prevent majority votes on judicial nominations. Their hypocrisy should be made clear if they fail to abide by their own principle.
The choice our very popular president makes will help shape justice in America and renew our commitment to core constitutional values. He should make a nomination that will leave a legacy befitting his historic presidency.
Most of the Senate Judiciary Committee’s Republican members boycotted the confirmation hearing on President Obama’s first judicial nominee, Judge David Hamilton.
A few weeks ago, all 41 Republican Senators sent a letter to President Obama , threatening that they will use filibusters to prevent majority votes on any nominee who will not rule based on the political agenda of the Republican senator from their home state.
Just what is that agenda? To find out, just look at the record of the judges President Bush put on the federal bench with the enthusiastic support of these same Republican senators. Recent appointees to the courts of appeals found that:
- Consumers can be required to pay for merchandise received in the mail even if they never ordered it.
- Hospital executives could fire a nurse after she said publicly that she believed new staffing policies jeopardized the health of mothers and their babies.
- An employee could be fired for complaining about serious racially inflammatory comments in the workplace.
Republicans were all in favor of a straight majority vote – with no filibustering – to support judges with that kind of political agenda.
With the appointment of Judge Hamilton, President Obama has signaled that he will nominate highly qualified judges who will uphold our Constitution and the law to provide equal justice and protect personal freedoms for everyone in America, not just a few.
The boycott is especially ironic given that Judge Hamilton not only meets those high standards, he is supported by the Republican Senator from his home state of Indiana, Richard Lugar (R-IN).
Still not sure that the Republicans are doing all they can to ensure the courts carry out their political agenda? What else explains the blatant hypocrisy of saying the Senate had no right to question President Bush’s nominees, but President Obama must first get the Republicans’ blessing before making his nominations?
Look at what Senator Mel Martinez (R-FL) said to Democrats about President Bush’s nominees in a statement on the floor of the Senate in 2006:
“We simply do not have the prerogative of deciding who it is we would prefer to see on the Court or who it is we might find more philosophically suitable to us or more to our liking.”
The American people can’t let the Republicans block nominees who don’t support their political agenda. We can’t continue to have a country where there is one set of rules for a few at the top and a different set for the rest of us.