To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel
Re: Striking Progress on Judicial Nominations
Date: September 22, 2014
So far, 2014 has been a banner year for effectively pushing back against the Republican obstruction of judicial nominees that we have seen since the moment Barack Obama took office. The past few months have shown just how much progress America can make in ending the deliberate sabotage of the third branch of government so that our nation’s federal court system can do what the Founders intended it to do: Protect every person’s rights and ensure that everyone can have their day in court.
Since the day that George W. Bush left office, Republicans have sought to leave as many judgeships as possible vacant for as long as possible, apparently in the hopes of maximizing the next (Republican) president’s opportunities to nominate his or her own judges and impose a right-wing ideology on America’s federal courts. With that goal they have simply blocked confirmation votes, regardless of the nominee. The result has been long backlogs in courts across the country and serious delay in providing justice for many Americans.
Under Senate rules, unanimous consent is needed to schedule a confirmation vote for a judicial nominee – something that used to be regularly granted to nominees with strong bipartisan support, as most lower court judges have had. But for the first time, Republicans under President Obama have routinely refused to allow timely votes on nearly every nominee – even the vast majority who have little or no Republican opposition – effectively but invisibly filibustering just about every one of them. Only after months of delay would Republicans finally consent to a vote. In all other cases, the only way to break the logjam has been for Democrats to file a cloture motion to end the filibuster, a burdensome and time-consuming practice, and (until recently) one requiring a supermajority of 60 votes. So for the first five years of the Obama presidency, confirmations were regularly delayed for no reason, usually out of public view, for months longer than necessary. For instance, Richard Taranto was confirmed to the Federal Circuit unanimously, but the Senate was not allowed to hold a vote until 347 days after his committee approval; Republicans never publicly explained why they would not allow him a vote earlier.
Overcoming Obstruction in 2014
This year, things have changed. By late 2013, five years of unprecedented obstruction had climaxed in a declaration by GOP senators that they would filibuster any nominee for the critically important and understaffed District of Columbia Circuit Court of Appeals, no matter who the nominee might be, Senate Democrats concluded that the Senate and the nation would be significantly damaged if this were allowed to continue. The chamber responded to the exceptional obstruction by reforming its procedural rules. Going forward, cloture votes to end filibusters of executive and judicial nominees (with the exception of those to the Supreme Court) would require a majority of senators voting, rather than 60 votes.
Now, when Republicans refuse to consent to a vote, Majority Leader Reid files a cloture petition and sets a vote. Taking advantage of the change in Senate rules, Democrats have been able to defeat the GOP filibusters with a simple majority vote. While Republicans have not consented to even one judicial confirmation vote in 2014, they also have not been able to stop the Senate from voting on any of them. And despite the significant time that Republicans force the Senate to spend on each confirmation – drawn-out roll-call cloture votes, post-cloture time for debate of 30 hours for circuit court nominees and two hours for district court nominees (a debate that usually does not occur despite the time set aside for it), then time-consuming roll-call confirmation votes – Reid and the Democrats have persevered. Rather than wait for months longer than needed after committee approval before having a floor vote, the Senate has been able to act in a more timely – and appropriate – manner.
One of the basic and most important responsibilities of the U.S. Senate under the Constitution is to vote whether to confirm judges and keep the federal judiciary functioning. As of 2014, the Senate has no longer been blocked from doing that.
The figure below shows the dramatic drop in how long the average nominee has had to wait for a confirmation vote after approval by the Judiciary Committee as a result of the rules change:
With the Senate freed to do its job, the number of confirmation votes has grown significantly.
This has ameliorated the intentionally generated vacancy crisis that has hobbled our courts since President Obama took office. There were 54 vacancies when Obama was inaugurated in 2009. With the Senate blocked from holding timely confirmation votes, that number went to historic highs, skyrocketing to 100 by the end of the year. When the 111th Congress ended in December of 2010, Republicans blocked confirmation votes for 19 qualified nominees who had been approved by the Judiciary Committee, the overwhelming majority of whom had been approved unanimously or with almost unanimous support. As a result, 2011 opened with 95 vacancies – and with a needless bottleneck of nominations that delayed confirmation votes for all nominees down the line. With Republicans preventing the Senate from confirming even consensus nominees, it counted as a major accomplishment if the number of vacancies dipped into the low 80s, or even the 70s, as it sometimes did.
As a result, at the beginning of this year, our federal court system was suffering from 92 vacancies. And now? As of September 21, we’re down to 57 circuit and district court vacancies, just a few more than when Obama took office. This is a dramatic and long overdue drop.
Supreme Court and Circuit Courts:
Undoing the Damage of the Bush Years
Our Constitution and our laws protect our right to vote, to have a workplace free of discrimination, to get married, to make our own reproductive decisions, to hold corporations accountable when they unlawfully injure or cheat us, and to have a voice in our democracy. But those rights don’t mean anything if we don’t have effective courts – and judges – to vindicate them when they are impinged.
Knowing the important role federal courts play in shaping our laws and guaranteeing – or frustrating – our basic rights, President Bush and his supporters set out to put as many far right ideologues on the federal appellate courts as possible. The most controversial of his court nominees are busy re-making law across the land.
Most notoriously, John Roberts and Samuel Alito have joined with Reagan and Bush-41 nominees Antonin Scalia, Clarence Thomas, and Anthony Kennedy to give hard-right ideologues a frequent 5-4 majority on the Supreme Court. They have regularly bent the law and confounded logic in order to rule in favor of the powerful in case after the case, rewriting our Constitution and federal laws. Citizens United, Shelby County, and Hobby Lobby are just a few of the growing number of cases where they have used the federal bench as a platform to transform the country to fit their personal political ideologies, notwithstanding what the Constitution and our laws actually say.
While the Supreme Court is extremely important and well known, it only hears around 75 cases a year. Most Americans in federal courts have their cases decided at the district or circuit level. Circuit court rulings have an enormous impact on the law, and only a tiny portion of them are reconsidered at the Supreme Court. That is why George W. Bush and his partisans spent so much effort to confirm ideologues like Janice Rogers Brown, who now holds a lifetime position on the D.C. Circuit. She wrote a 2012 opinion holding that graphic warnings on cigarette packages violate the tobacco companies’ free speech rights. She joined a 2013 opinion striking down a National Labor Relations Board rule requiring employers to post workers’ legal rights, framing it as “compelled speech” indistinguishable from forcing schoolchildren to say the Pledge of Allegiance or requiring drivers to display a political message (Live Free or Die) on their license plates. She even defended the ideology of the discredited Lochner era in a 2012 concurrence, writing that courts’ deference to everyday economic and business regulations “means property is at the mercy of the pillagers.”
In contrast to ideologues like Brown, President Obama has named judges characterized by their fidelity to the Constitution and our laws, and the impact on ordinary Americans has been enormous. For instance, the full D.C. Circuit, which now has four Obama nominees among its eleven active judges, this month vacated a widely criticized panel ruling by two conservative judges striking down a key subsidies provision of the Affordable Care Act. The legal argument against the subsidies has been widely recognized as weak, with a transparently political motive. On the same day of the DC Circuit’s panel ruling, a unanimous panel of the Fourth Circuit had upheld the law. Obama nominee Andre Davis accurately described what the far right plaintiffs are seeking judicial allies to do:
[They want] our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.
As that one example illustrates, the D.C. Circuit is hardly the only one of our nation’s 13 federal circuit courts that looks very different today from when Bush left office. Where there was then only one circuit with a majority of its active judges nominated by Democratic presidents, today there are nine.
Especially this year, supported by the Senate rules change, progress has been remarkable. The 113th Congress has confirmed 23 circuit court judges. One would have to go back to the 99th Congress in 1985-1986 to see that many circuit court judges confirmed during a single Congress.
The past year has seen the confirmation of nominees like Michelle Friedland (9th Circuit), Pam Harris (4th Circuit), and Nina Pillard (D.C. Circuit), jurists who understand the impact of the law on everyday Americans, who cherish our constitutional principles of equality and liberty, and who don’t see the federal courts as just another part of government that can be used to enhance corporate power.
If the past few months have shown us anything, it is this: Standing up to bullies works. The White House has made judicial nominations that it can be proud of, and Senate Democrats have overcome years of Republican obstruction to get these nominees confirmed. Despite the GOP’s herculean efforts to prevent President Obama from exercising the powers he was elected – and re-elected – to use, he is successfully restoring balance to the nation’s courts. For the first time, the number of courtroom vacancies is close to where it was when Obama took office, and highly qualified jurists are taking their places on our federal circuit and district courts.
And the progress isn’t over. An additional 16 judicial nominees have been fully vetted and approved by the Judiciary Committee and are currently eligible for a floor vote – a floor vote that could have been held before the Senate left town for the elections. Several more have had hearings and should be ready for consideration by the Committee and the full Senate during the lame duck session that is scheduled to begin on November 12. And the White House just sent additional nominees to the Senate that could easily have hearings and a Committee vote during the lame duck session as well. There is absolutely no excuse for not holding confirmation votes on any of these committee-approved nominees by the end of this Congress.
During the last two years of the Obama Administration and the years that follow, we can be sure of certain things: The courts will remain critically important, and progressives will have to fight hard to protect those courts and keep them functioning effectively, with judges who won’t seek to use their positions to short-circuit our most important rights.
The Senate today voted to approve the nomination of David Barron to First Circuit Court of Appeals by a vote of 53 to 45.
Marge Baker, Executive Vice President at People For the American Way issued the following statement:
“The Senate should be applauded today not just for confirming a well-qualified nominee, but for taking another important step towards addressing the persistent issue of vacancies on our nation’s circuit courts. For years, Republicans have blocked, delayed, and obstructed the confirmation of judges to our circuit courts at every opportunity. In recent months, Majority Leader Reid and the Democratic Caucus have been making real strides in processing the backlog of nominees.
“We need to continue to push hard to make sure Americans find fair-minded judges waiting for them when they turn to the federal courts to protect their rights.”
This Tuesday at a press conference in the US Capitol hosted by Brave New Films and featuring Robert Greenwald’s latest documentary, “Koch Bros Exposed,” Senate Majority Leader Harry Reid, House Minority Leader Nancy Pelosi, Sen. Bernie Sanders and People For the American Way Executive Vice President Marge Baker made a resounding call for amending the Constitution to overturn the Supreme Court’s egregious decisions like Citizens United and McCutcheon v. FEC.
“We need our voices heard… we need to change the status quo,” Majority Leader Reid stated after calling for an amendment.
“We need a government by the many, not a government by the money,” Minority Leader Nancy Pelosi echoed. She went on to declare, “the time to amend the Constitution is now!”
Comparing the amount the Koch brothers spent in the 2012 election cycle to the amount they made, on average, over the past three years, Sen. Sanders pointed out: “$400 million is not a lot of money when you make $11 billion a year.”
Following Sen. Sanders, People For the American Way’s Executive Vice President for Policy and Program, Marge Baker, took the podium and stated, “The time has come to discuss solutions.” She highlighted the growing support for the amendment strategy, the momentum behind the small donor empowering Government By the People Act, the push at the state level for disclosure and campaign finance law, and the growing movement around the country of everyday citizens who are working to build a more democratic government.
After a two week recess, the Senate has made significant progress in judicial confirmations on its first week back. This is not due to a drop in Republican obstruction, but instead to Majority Leader Harry Reid’s determination to overcome that obstruction. Only one week during President Obama’s administration has seen more judicial confirmations. Since Monday, over GOP filibuster efforts, the Senate has confirmed eight district court nominees and one circuit court nominee, while breaking the filibuster of a second circuit court nominee. Nancy L. Moritz’s nomination to the Tenth Circuit is scheduled for Monday, May 5.
Clearing so many of President Obama’s judicial nominations is a nearly unprecedented occurrence for a Senate that has been bogged down by Republican obstruction every step of the way. People For the American Way’s Executive Vice President Marge Baker released the following statement:
“This was a good week for our justice system, with nine judges confirmed to the bench. Americans saw critical advancement in confirming the circuit court nominees who have been denied a vote for months. A Ninth Circuit judge was confirmed, and the filibuster of a Tenth Circuit judge was broken. We applaud the Senate for moving forward on these confirmations, which are crucial for our justice system to run efficiently and serve everyday Americans. It is heartening to see the Senate taking this important step to strengthen our judiciary.
“Senator Reid’s efforts to prioritize this issue and clear President Obama’s judicial nominations are making an impact. Despite Senate Republicans blocking nominees and delaying votes from the beginning, Senator Reid has pushed to move these nominations forward and this week, we’ve seen that work pay off.
“We hope to continue to see the Senate working for the benefit of American citizens by giving them the fully functioning courts they deserve.”
Tuesday afternoon, PFAW hosted a special member telebriefing on the continued GOP obstruction of judicial nominees. The briefing featured PFAW’s Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon. They discussed how Republicans’ obstruction has reached staggering levels, despite changes in Senate filibuster rules.
Marge gave a brief background on the issue of GOP obstruction of judicial nominations, explaining how important federal judgeships are for deciding many issues that affect everyday Americans and defining why Republicans are determined to continue obstruction confirmations of judicial nominees. Their underlying goal is to keep as many seats empty as possible so a President Cruz or Rubio can fill them with right-wing ideologues.
She addressed the current narrative that President Obama has had more confirmations at this time than Bush had, and explained that these numbers need to be put in the context of the fact that Obama has had around 70 more vacancies to fill than his predecessor. That means for Obama’s confirmation results to be seen as equivalent to those of President Bush, he would have had to have many more nominees confirmed at this point in his presidency.
Paul began a discussion of some of the choke methods Republicans are employing to block the confirmation of President Obama's nominees to the bench. Paul delineated how all too often, GOP senators do not cooperate with the White House to suggest candidates for nomination, delaying the process from the very beginning. Once nominees are made and are sent to the Senate Judiciary Committee, we have seen GOP Senators delay the hearing by not submitting their blue slips, an unofficial tradition that gives home state Senators an opportunity to express their support for the nominee.
Marge explained ways in which Republicans are delaying the process once nominees are in committee, where the minority is allowed to request one-week delays. To express the magnitude of the obstruction, Marge explained how of the 270 nominees who have had a vote during President Obama's term, only 11 have had their votes held on time.
Once on the Senate floor, the situation doesn't get better as senators are able to filibuster nominees by refusing to give unanimous consent to the simple act of holding a yes-or-no confirmation vote. To offset these delays, Senate Majority Leader Harry Reid has been forced to file for cloture. Since the rules change in November, there have been cloture votes on all the nominees, adding hours of senate time in post-cloture debates (30 hours per circuit court nominee).
Marge highlighted that if all 30 nominees on the floor were voted on today, which is possible, then the number of current vacancies would drop precipitously, down to the level at this point in George W. Bush’s presidency. It is essential that these be voted on now, and that confirmation votes for nominations coming out of committee be voted on expeditiously.
Fielding questions from PFAW members, Marge and Paul discussed particular cases of obstruction like that of William Thomas's nomination in Florida, where Senator Marco Rubio withheld his blue slip in support of the nominee-–one that he himself had recommended in the first place. Members also made the connection between the effect of big money in politics and the motivations for GOP senators to obstruct confirmations, and attempted to find ways in which everyday Americans can make their voices heard to their senators regarding the issues of obstruction in judicial nominations. Paul used the example of the DC Circuit Court fight, where with the activism from people across the country rallying together helped get all the court's vacancies filled.
Marge and Paul, along with PFAW members, emphasized how as activists, we can intervene in the fight to take back our democracy by letting Senators know that average Americans are paying attention, watching how they respond and vote on judicial nominations, and considering who may be pulling their strings. For instance, a caller in Florida wanting to influence Marco Rubio could call his office and ask him to prevent a delay in a committee vote for nominees to fill four emergency vacancies. And everyone, regardless of whether there are vacancies in their state, can call their senators and call for the quick confirmation of the large number of nominees awaiting a floor vote. She also highlighted what is at stake in this mid-term election since the officials we elect today will help confirm the judges that will decide important cases that affect average Americans. For this reason, it is important to have demographic and experiential diversity in the courts so judges making decisions understand the impact of the law on regular Americans.
Upon returning from a two week recess, the Senate voted today to confirm Michelle T. Friedland to the US Court of Appeals for the 9th Circuit. Notably, Friedland is the 100th female judge confirmed under President Obama.
People For the American Way’s Executive Vice President Marge Baker released the following statement:
“Today’s confirmation is an important step towards addressing the judicial vacancy crisis on the federal bench, particularly in our Courts of Appeals, and it’s an important step towards building a more diverse judiciary. Confirming President Obama’s nominees makes our judicial system work better for Americans who depend on the courts. That’s doubly true in circuit courts which are frequently the courts of last resort for determining issues that affect American families every day.
“Senator Reid should be applauded for moving the confirmation process forward despite the GOP’s unrelenting campaign of obstruction. Since the beginning of President Obama’s administration, Senate Republicans have delayed votes and slowed down the process of filling judicial vacancies with qualified judges. Their campaign of obstruction has increased the backlog of vacancies waiting to be filled and weakened our judiciary.
“Today’s confirmation is a step in the right direction. Filling vacancies in our courts should not be a partisan issue—it should be about the American citizens whom these courts serve.”
Senate Majority Leader Harry Reid filed cloture yesterday on the nomination of John B. Owens to a seat on the US Court of Appeals for the Ninth Circuit—one that has been declared a judicial emergency and which has been vacant for almost 10 years. This moves forward the Senate judicial confirmations process that has been relentlessly slowed down by GOP obstruction. In an atmosphere of constant delays, it is commendable that Sen. Reid is taking action to get nominees confirmed, especially circuit court nominees.
Because of obstruction by Senate Republicans, nominations for the circuit court have been made particularly cumbersome. As we explained last month, if Senators refuse to provide “unanimous consent” to schedule a vote, Sen. Reid is forced to file a cloture petition to allow a yes or no vote on the nominee. Once cloture is invoked, Senate rules allow the minority to insist on “post-cloture debate”— up to 30 hours for circuit court nominees.
With six circuit court nominees now on the Senate calendar, (including the most recent addition, Fifth Circuit nominee Gregg Costa, who was recommended unanimously by the Senate Judiciary Committee this morning) and more in the pipeline, Republicans can tie the Senate up for 180 hours of needless “post cloture debate” – that is weeks of floor time that could be spent doing something useful. Time is growing short to get them all confirmed by the end of the year. One easy answer is for Senate Republicans to forego their delaying tactics and permit the Senate to both confirm judicial nominees and perform the other important work waiting to be done. Until that happens, Sen. Reid should be applauded for pushing the process forward.
Early this week, the Senate is scheduled to hold cloture votes on four judicial nominees, including Timothy Brooks, nominee for the Western District of Arkansas and Pamela Reeves, nominee for the Eastern District of Tennessee. Brooks and Reeves have been waiting for confirmation votes on the Senate floor since October 31 and November 14, respectively.
As we noted earlier this month, Republicans are routinely delaying nominations on the Senate floor by requiring Democrats to invoke cloture on every single judicial nominee and then piling on hours of unneeded “post-cloture debate” for each nominee who is called up for a vote. This practice creates a weeks-long backlog of nominees awaiting votes and prevents the Senate from moving on to other business. Nominees like Brooks and Reeves could have been confirmed within minutes after they were sent to the Senate floor last year. Instead, both of these nominations were sent back to the president in early January at the end of the first session of the 113th Congress to be re-nominated. After further needless delays in Committee, the nominees were finally placed on the Senate calendar only to wait an additional two months for consideration.
After the Senate has finally worked through the backlog of nominees to get to the Arkansas and Tennessee vacancies, Republicans are throwing up additional roadblocks, forcing Senator Reid to file cloture petitions, which will further delay their consideration. These nonsensical delays of well qualified nominees undermine the public’s faith in the Senate and create hardship for those seeking justice in the courts.
On Tuesday, Senate Majority Leader Harry Reid (D-Nev.) responded to Sen. Chuck Grassley’s (R-Iowa) absurd claim that this Congress has done well in confirming judicial nominees. In fact, Republicans have not consented to even one judicial confirmation vote since November. The few votes that have been held since then have been over GOP filibusters. Unfortunately, Senate rules allow them to demand hours of needless “post cloture debate” after every cloture vote, so it could take weeks and weeks of Senate floor time to get through all the nominees waiting for a simple yes-or-no vote.
Reid was quick to voice that the confirmation process has been unnecessarily delayed by GOP obstruction:
Everyone knows that we are in this situation because of Republicans slow-walking every nomination—every nomination. There is no reason, no reason whatsoever that we are having votes on cloture on these judges.
“It is a waste of the taxpayers’ time to go through the process we’ve been going through.
Reid, aware of the prolonged time they will spend clearing the backlog due to these procedural delays, promised that they will get through filing cloture on all of the nominees.
If that’s what the Republicans want us to do, then that’s what we’ll do. The American people will see this colossal waste of time that we’ve been going through.