Elena Kagan

PFAW Memo: Debunking the GOP’s Disinformation Campaign on Judicial Obstruction

To: Interested Parties
From: Marge Baker, People For the American Way
Date: May 9, 2012
Subject: Debunking the GOP’s Disinformation Campaign on Judicial Obstruction

On Monday, 150 Americans from 27 states met in the White House with senior Administration officials and spent the day lobbying their senators to end the obstruction of qualified judicial nominees. For those Republican senators who may have thought the obstruction that is keeping our court system from functioning properly had gone unnoticed, it must have been an unpleasant surprise to learn their constituents are paying attention.

In response, Senate Republicans are throwing out a lot of irrelevant numbers and misleading comparisons in a desperate attempt to fog the issue, but they are plainly unable to rebut the clear fact that their constituents have noticed: that Republicans are needlessly obstructing judicial nominations.

For instance, because President Bush’s confirmed nominees at this point in his term were processed so much more quickly and fairly than have President Obama’s, the Republican Policy Committee concocts an excuse to ignore that inconvenient truth. They say we should be comparing President Obama’s first term to President Bush’s second term, because both saw two Supreme Court nominations that took up a lot of committee and Senate resources.

That lets them point out that President Obama has had more lower court confirmations in his first term than President Bush did in his second. But there is a reason Bush had fewer judges confirmed in his second term: There were fewer vacancies. When Bush entered office, there were 80 vacancies in the federal courts, a number he cut down to 37 by the end of his first term. In contrast, because of Republican obstruction, the number of vacancies began to climb sharply when President Obama became the person making the nominations, and it has remained at crisis levels his entire time in office.

In addition, although Sonia Sotomayor and Elena Kagan were confirmed in 2009 and 2010, the slow-walking of lower court nominations continued in ensuing years. In the 112th Congress, which began five months after Kagan’s confirmation, nominees have been held up on the floor more than three months on average, even if they are unopposed.

Republicans also blame President Obama for not making enough nominations. But the political reality is that the president needs the approval of home state senators if a nomination is to even get a committee hearing. And contrary to the practice of President Bush, the current White House actually consults home state senators in an effort to find consensus nominees. If GOP senators won’t work with the president to identify candidates who they can all agree on, the president is not the one to blame.

In any event, finding a nominee for every vacancy would not solve the bottleneck that Republicans have created at the end of the confirmation process. There are currently 19 nominees on the Senate calendar awaiting votes who could be confirmed today if the Republican leadership gave their consent.

But perhaps the most disingenuous talking point comes from Sen. Chuck Grassley, ranking Republican on the Judiciary Committee. In yesterday’s floor debate on the confirmation of Kristine Baker to a district court in Arkansas – whose nomination has been pending on the floor since February – he says a Bush nominee to the same district was treated far worse:

I would note that President Bush’s nominee, J. Leon Holmes, sat on the executive calendar for more than 14 months awaiting confirmation. From nomination, his confirmation took over 17 months. Again, why was President Bush’s nominee treated worse than this President’s nominee?

Sen. Grassley isn’t comparing apples and oranges – he’s comparing apples and skyscrapers. Holmes was so controversial that even the Republican-controlled Judiciary Committee did not approve of his nomination. In a rare step reflecting serious concerns about the merits of the nomination, a sharply divided committee voted 10-9 to forward it to the floor without a formal endorsement. After that, it was the Republicans who then controlled the Senate who delayed the confirmation vote for more than a year, fearing the Senate would reject Holmes. When he was finally confirmed in 2004, it was by a 51-46 vote.

So Republicans delayed a vote on Holmes because he was extremely divisive and lacked support in the Senate. In contrast, Kristine Baker – who cleared committee with a 17-1 vote and was confirmed by a bipartisan voice vote – was delayed by Republicans because of the Sotomayor and Kagan confirmations?

Republicans cannot deny that they are making President Obama’s judicial nominations wait more than 4 times longer for votes than was the case at this point in the Bush presidency, even though most of them are consensus nominees with strong bipartisan support. Their efforts to distract the American people from that stark fact resemble the Wizard of Oz trying to get Dorothy to “pay no attention to that man behind the curtain.”

Ultimately, though, this isn’t about statistics. It’s about people. It’s about the people who count on having their day in court, only to learn first-hand that justice delayed is justice denied. It’s the victims of predatory lending practices, consumer fraud, environmental destruction, and civil rights violations. It’s the business owners who can’t get relief from anti-competitive activities, can’t complete their mergers, and can’t enforce their contracts. This is about Americans across the nation who deserve a justice system that works.

Press contact: Miranda Blue, media@pfaw.org, (202) 467-4999



Sessions Objects to Judicial Nominee Who Called Kagan ‘Qualified’

The Senate Judiciary Committee yesterday approved the nomination of Maine attorney William Kayatta Jr. to sit on the 1st Circuit Court of Appeals. Only two committee members voted against allowing Kayatta a vote from the full Senate: Utah’s Mike Lee, who is still protesting all Obama nominees, and Alabama Sen. Jeff Sessions, who gave the following reason, according to the Portland Press Herald:

In a statement on his opposition to Kayatta's nomination, Sessions cited Kayatta's role as lead evaluator for the American Bar Association's Standing Committee on the Federal Judiciary during the nomination of U.S. Supreme Court Justice Elena Kagan.

Sessions said Kayatta saw fit to give Kagen the highest rating despite her lack of substantial courtroom and trial experience, as a lawyer or trial judge. Sessions said the rating was "not only unsupported by the record, but, in my opinion, the product of political bias."

Yes, that’s right. Kayatta was involved in the American Bar Association’s nonpartisan rating process, which dared to call the solicitor general and former Harvard Law School dean “well qualified” for the job of Supreme Court Justice.

Sessions, one of the most outspoken opponents of Kagan’s Supreme Court nomination frequently slammed her lack of judicial experience in her confirmation hearings two years ago. He seemed to conveniently forget that the late conservative icon Chief Justice William Rehnquist also came to the High Court without having previously served as a judge – as have over one third of all Justices in U.S. history. The American Bar Association similarly found Rehnquist qualified for the job and called him “one of the best persons available for appointment to the Supreme Court [pdf].

It would be funny if it weren’t so appalling: Sessions’ grudge against Kagan runs so deep that he not only objected to her nomination, he’s objecting to anyone who who’s dared to call her qualified for her job.


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