This is a good day for Americans who care about our federal courts. According to press reports, Judiciary Committee Chairman Patrick Leahy has said that Georgia federal district court nominee Mike Boggs lacks majority support on the committee and that he should withdraw. The New York Times calls the nomination "dead."
Federal judicial nominees routinely - and appropriately - assure senators that their personal feelings and political positions will play no role in their judicial decisions. But this particular nominee did exactly the opposite when running for election as a state judge in 2004. That's when then-Rep. Boggs told voters at a judicial candidates' forum, "I am proud of my record. You don't have to guess where I stand - I oppose same-sex marriages. I supported and authored the Child Protection Act to protect children from predators. I have a record that tells you exactly what I stand for."
This connection - that Boggs himself made - between how he would approach judging cases to his views as a legislator on the legal issues that would be before him as a judge, compelled the Senate Judiciary Committee to examine Boggs' legislative record.
And what a disturbing record that was: He sought to amend the state constitution to forever lock gays and lesbians out of the promise of equality and to prohibit the Georgia legislature from ever extending marriage rights to gays and lesbians. He supported anti-choice legislation and even voted for a bill amendment that would have put abortion providers' lives at risk. He voted in support of having the Confederate battle symbol incorporated into the state flag. He sought to use the power of government to promote religion, church-state separation notwithstanding.
Given his 2004 assurance that his legislative record showed how he would rule as a judge, senators could certainly presume that Boggs has a severely cramped view of constitutional Equal Protection, reproductive rights, and church-state separation. LGBT people, religious minorities, African Americans, and women could not be assured that their basic rights would be recognized and fully protected in his courtroom.
To make things worse, his efforts to explain away his record to the Judiciary Committee raised questions about his candor.
For instance, at his hearing, he assured both Senators Mazie Hirono and Chris Coons that statements he made in 2004 while expressing his opposition to marriage equality about "the dangers that we face with respect to activist judges" were views he held as a legislator, not as a judge. Yet he sounded quite different as recently as November 2011, having been a judge for nearly seven years. At that time, Boggs was promoting himself to a different audience, the Judicial Nominating Commission of Georgia, which was considering recommending to the governor his appointment as a state appeals court judge. When asked then how to improve the efficiency and effectiveness of the legal system, Boggs cited as the problem "judges who abrogated their constitutionally created authority" and "judicial decisions that have ignored and violated the basic tenets of the judiciary."
At his Senate confirmation hearings just a few years later, Sen. Coons asked Boggs to name three or four examples of cases that he'd had in mind when he expressed those concerns in 2011. Boggs admitted that as a legislator in 2004, he considered cases recognizing marriage equality as a state constitutional right as fitting this category, but didn't say what cases he'd had in mind in 2011. In her written follow-up questions, Sen. Dianne Feinstein asked Boggs if he could name any decisions that he believed abrogated the judiciary's constitutionally created authority (using his words). He responded that he could not recall any cases that he had been thinking of at the time.
Yeah, right. Based on what Boggs told the state Commission, he viewed this as extremely serious, going to the very legitimacy of the courts. Yet just a few years later, even after being given additional time to think about it, he could not recall even one case that he'd had in mind. One could be forgiven for believing instead that he actually had in mind the same cases he'd referred to in 2004, and that he was telling the commissioners - and ultimately, Georgia's governor - what he thought they wanted to hear.
His efforts to explain away his votes endangering abortion providers and supporting the Confederate battle symbol were equally not believable, and apparently they were not believed by a majority of committee members. Good for them.
Boggs' disturbing record showed he was unqualified for the federal bench. Today's news shows that a majority of the Judiciary Committee agrees.
To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: September 15, 2014
Subject: Senate Needs to Confirm Pending Judicial Nominees
There is probably little more than a week before the Senate goes out on recess until after the election. One of the most important – and undoubtedly quickest and easiest – things it can do before then is confirm 16 judicial nominees, most of whom have overwhelming bipartisan support.
One of the most important responsibilities of the United States Senate is to maintain a functioning federal court system. District courts are the backbone of the American judicial system. They are where people turn when they feel their rights have been violated. “Having your day in court” is an essential part of the American ideal. But that ideal cannot be met if we don’t have enough judges to make it happen. Even if every vacancy in the country were filled tomorrow, it wouldn’t be enough: The Judicial Conference of the United States – the entity responsible for assessing the federal courts’ ability to effectively manage their caseloads – has urged Congress to create an additional 85 district court judgeships. So when an existing vacancy can be filled with a qualified nominee, it ought to be done with dispatch.
Right now, nominees for 16 such vacancies can be confirmed within the next few days. Seven of these were fully vetted and approved by the Judiciary Committee and have been waiting for a floor vote since June or July. Of these seven, all but one of them advanced without any opposition. Four alone are from Georgia: nominees who have the unanimous support of the Judiciary Committee’s Democratic and Republican senators. There are no more questions to ask of these nominees, except when they will be allowed to take up their judicial responsibilities and fill empty courtrooms in Georgia, New York, Wisconsin, and the District of Columbia.
The remaining nine were scheduled for a committee vote last week, having had their confirmation hearings back in July. They have been nominated for judgeships in Pennsylvania, Kentucky, Missouri, Connecticut, and New Jersey. Four of them – nearly half – would serve in the Eastern District of Pennsylvania, a state with so many vacancies that it alone accounts for 15% of the nation’s total, but Chairman Leahy was forced by the GOP to delay the vote. Republicans gave no reason for the delay, but they rarely do: Since President Obama took office, Republicans have exercised the right of the minority party to have a committee vote “held over” (delayed) by at least a week without cause for nearly all of his judicial nominees, part of their overall mechanism of obstruction. Fortunately, they are expected to get their overdue committee approval later this week.
There remains plenty of time to confirm all 16 nominees before the Senate goes out for its pre-election recess next week.
The fact that we are heading into an election is no reason not to hold these confirmation votes. In fact, in September of 2008, a presidential election year – and the twilight of George W. Bush’s presidency, no less – Democrats rushed several of his nominees through to make sure they got confirmed before recess (and before his presidency ended). Ten of Bush’s district court nominees were confirmed just one day after being approved by the Judiciary Committee. All ten had had their committee hearings earlier that same month – in some cases, during that same week. The confirmation votes took hardly any time at all, since all ten were considered and confirmed as a bloc by unanimous consent.
Interestingly, three of those 2008 nominees were from the Eastern District of Pennsylvania, where four of the current 16 nominees could be serving by next week, if given the chance.
Republicans still have a chance to demonstrate that they can prioritize the functioning of the U.S. court system over their own partisan interests. But it seems unlikely. Since last year, the GOP has insisted that no judicial nominee, despite their bipartisan support, advance on the Senate floor without time-consuming cloture votes and roll-call confirmation votes. And it isn’t just the roll-call votes that take time (although each one can take nearly an hour). Without unanimous consent to waive the chamber’s time requirements, cloture votes cannot be held until two days after cloture petitions are filed, and each confirmation vote requires at least an hour of needless “post-cloture debate” even after the filibuster is broken.
If Republicans successfully prevent votes this month, the earliest the courtrooms will see some relief will be in a potential lame duck session. That means another two month wait until clearly qualified nominees are able to take their seats in courtrooms around the country. There is simply no good reason for such delay.
WASHINGTON –Chairman Patrick Leahy announced yesterday that the Senate Judiciary Committee will hold a hearing on June 25 on the Voting Rights Amendment Act (VRAA), legislation intended to repair damage done by the Supreme Court last year in Shelby County v. Holder. People For the American Way's Executive Vice President Marge Baker released the following statement:
“Chairman Leahy and the Judiciary Committee should be commended for taking an important step toward correcting the damage done by last year’s Shelby decision. The right to vote is the most fundamental right in our democracy, which is why we need a modern, effective Voting Rights Act to protect it. We urge the Senate to move quickly on this, and the House to follow suit. With another national election looming, now is the time to move forward to protect the right to vote for all.”
The day of the Senate hearing will mark one year since the Supreme Court gutted a key provision of the Voting Rights Act in its Shelby decision. While a bipartisan group of House members joined Chairman Leahy to introduce the VRAA in January, the House Judiciary Committee has yet to schedule a hearing.
In an op-ed Sunday, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, addressed critics of his use of blue slips, a committee tradition that Republicans continue to abuse. Under this policy, the chairman asks the Senators from a nominee’s home state to submit a blue slip expressing their support or opposition. The consequences have varied over time, depending on who the chairman has been. Leahy’s practice has been to not hold a hearing unless both senators submit their blue slips saying they support letting the committee process the application. As Senator Leahy points out
The Constitution requires presidents to seek both the “advice and consent” of the Senate in appointing judges to lifetime posts on the federal courts. … When senators return this paper, it is proof that the senators elected to represent that state were consulted and the nominee is likely to be confirmed.
Leahy states he “cannot recall a single judicial nominee being confirmed over the objection of his or her home-state senators,” and affirms the importance of home-state support in moving the process forward.
But Leahy also acknowledges that the “judicial confirmation process in the Senate has grown increasingly difficult,” and that Senate practices that bring principles of the Constitution to life do need “ongoing evaluation to make sure they work as intended. And he reiterates that he “would not rule out proceeding with a nomination if the blue slip is abused.”
Indeed, since his election, President Obama has routinely sought the advice of senators through the judicial nominations process. It has been a hallmark of his presidency. But too many Republicans have refused to engage in a cooperative process, instead seeking the authority to pick the nominee themselves, even if it is someone the president would oppose. When that happens, no nomination is made. Other times, the senators withhold the blue slip indefinitely, often refusing to give a reason why, and sometimes even after they themselves recommended the nominee they are now blocking. The result of this abuse has been the worsening of a serious judicial vacancy crisis.
Chairman Leahy has stressed the importance of blue slips in showing that senators have been consulted by the White House. Taking heed of Leahy’s words, Republicans should be wary of continuing the abuse of the blue slip process to block judicial confirmations. Their continued use of this “silent, unaccountable veto” is a detriment to the judicial process. As GOP obstruction continues through withholding of blue slips despite substantial consultation, judicial nominations grow more cumbersome, and the impracticality of this part of the process becomes clearer.
Yesterday, Sen. Diane Feinstein made an extraordinary 40-minute speech on the Senate floor denouncing the Central Intelligence Agency for obstructing congressional oversight by withholding information, intimidating staff involved in a congressional investigation, and removing documents from computers being used by the Senate Intelligence Committee staff. Feinstein, who chairs the Intelligence Committee, has been a long-term public advocate for the intelligence community. CIA Director John Brennan is disputing Feinstein’s charges.
At the center of the dispute with the CIA is a years-long investigation of the detention and interrogation programs carried out in the wake of the 9/11 terror attacks. But the core constitutional issue being raised by Sen. Feinstein is the ability of Congress, operating under rules agreed to by the CIA, to conduct an oversight investigation without being spied on and having its investigation obstructed by the agency.
Sen. Patrick Leahy said he could not think of any more important speech during his many years in Congress. Sen. Mark Udall, who is also a member of the Intelligence Committee, praised Feinstein for “setting the record straight today on the Senate floor about the CIA’s actions to subvert congressional oversight.”
“We applaud Sen. Feinstein for voicing publicly her serious concerns about the CIA’s alleged obstruction of congressional oversight. Congress’s ability to provide oversight for our nation’s intelligence gathering operations isn’t incidental to the work they do—it’s essential. If information was withheld and intimidation tactics were used to deter investigations, this would be a gross abuse of power.
“We depend on Congress’s ability to conduct these investigations in order to protect the separation of powers in our government as well as the fundamental civil liberties guaranteed by our Constitution. We commend Sen. Feinstein for speaking out and calling on the CIA to cooperate rather than obstruct congressional oversight."
When the Senate unanimously confirmed Sri Srinivasan to the Court of Appeals for the D.C. Circuit last month, Republicans patted themselves on the back for cooperating in a relatively efficient confirmation process. But, by any objective standard, Srinivasan’s confirmation process wasn’t that efficient at all. In fact, Republican obstruction of Srinivasan started when they delayed a hearing on his nomination for ten months, from June 2012 to April of this year.
But Sen. Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, is now pushing an alternate history of this delay on Srinivasan’s nomination. In a floor speech the day Srinivasan was confirmed, Grassley insisted that Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, “made no effort to schedule a hearing on this nominee until late last year.”
In a press release this week, Sen. Leahy explained why this argument is just plain false. In fact, he wrote, it was Senate Republicans who kept insisting that Srinivasan’s hearing be pushed back:
By July 19, 2012, I had determined that the paperwork on the Srinivasan nomination was complete and the nominee could be included in a hearing. It has been my practice as Chairman of the Judiciary Committee to give the minority notice and allow consultation before scheduling a nomination for a hearing. At that time, the next July hearing had been discussed as one devoted to the nominee to head the Antitrust Division at the Department of Justice, a nomination that itself had been delayed and to which there was Republican opposition. During the August recess, my staff asked Senator Grassley’s about holding the hearing on the Srinivasan nomination in September. They raised objections and concerns about proceeding with the D.C. Circuit nomination at that time but agreed to proceed with four district nominees and a Court of International Trade nominee.
In November, 2012, after the American people reelected President Obama, we raised the need for a hearing on the D.C. Circuit nomination anew. Republicans objected, again, in spite of the precedent of holding a hearing for one of President Bush’s D.C. Circuit nominees during a similar lame duck session. Instead, they wanted to proceed only with district court nominees during the lame duck. Republicans insisted that the Srinivasan hearing be put off until the new Congress and the new year. In deference to the Republican minority, I held off. They agreed that he would be included at the first nominations hearing of the 113th Congress.
Then, in early January of this year, when called upon to hold up their end of the bargain, Republicans balked.
This isn’t just a matter of settling a complicated Senate score. Instead, Sen. Leahy is pointing out yet another incident of Sen. Grassley’s twisting the truth about judicial nominees and the judicial nominations process in an attempt to cover for slowing down Senate business and ultimately the business of the federal courts. As Leahy says in his statement:
Those erroneous Record statements have me wondering whether I should be so accommodating to Republican scheduling demands given that they forget their demands in their efforts to avoid responsibility and blame others.