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.
Debo Adegbile, President Obama’s nominee to lead the Civil Rights Division of the Department of Justice, announced today that he would return to private practice. Adegbile’s confirmation was blocked earlier this year despite his extensive qualifications and his record of commitment to civil rights. People For the American Way Vice President Marge Baker issued the following statement:
“Debo Adegbile’s decision to return to private practice is a great loss for the Department of Justice and for the country. Adegbile is extraordinarily well qualified to lead the Civil Rights Division and exactly the kind of person that the President and the Senate should want in a key DOJ post. Instead, he was attacked by his opponents for taking on important issues in our justice system. In particular, Adegbile should be commended for his commitment to the principle that every criminal defendant deserves robust, competent representation. The willingness of his opponents to abandon that principle will be a shameful mark on the Senate’s history.
“While Adegbile’s decision to move on with his career is understandable, it’s still a deeply disappointing conclusion. His absence at the DOJ will be felt for years to come.”
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.
The Senate voted today to approve the nomination of Pamela Harris to the Fourth Circuit Court of Appeals by a vote of 50 to 43.
Marge Baker, Executive Vice President at People For the American Way issued the following statement:
“Pamela Harris is exactly the kind of judge we need in our courts. She is a brilliant litigator and public servant committed to improving the quality of justice for all. There’s no question she’ll make an excellent federal judge.
“We applaud the Senate for moving forward in confirming quality nominees to the federal bench. For years, Republicans have blocked, delayed, and obstructed the confirmation of judges, doing everything in their power to slow down the process. We applaud Senator Reid and Senator Leahy for pushing through the obstruction so the Senate can hold timely confirmation votes rather than let our nation’s courtrooms sit empty.
“Americans depend on federal judges to apply the Constitution’s guarantees of fairness and equality for all people. It’s critical that the Senate continue to confirm President Obama’s qualified, fair-minded nominees without delay.”
In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.
Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).
…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.
The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).
Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,
This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.
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.”
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.
Last month, the US Senate failed to invoke cloture on the nomination of Debo Adegbile to head the Civil Rights Division at the Justice Department after a right-wing smear campaign that attacked Adegbile for helping provide legal representation at the appellate level to Mumia Abu-Jamal, a convicted murderer, while working at the NAACP Legal Defense Fund. Every Senate Republican and seven Democrats voted to filibuster Adegbile’s nomination, effectively blocking the nomination and throwing out the window the constitutional ideal that all criminal defendants should have access to quality legal representation.
Last week, over one thousand law professors came together to publicly condemn the vote by writing a letter to the Senate where they explain the ramifications of the vote for law students, lawyers, and the legal profession as a whole. The letter – dated April 25, 2014 – states:
[W]e are deeply concerned that the vote and the rationale publicly articulated by a majority of Senators rejecting Mr. Adegbile sends a message that goes to several core values of the legal profession. These include the right to counsel, the importance of pro bono representation, and the importance of ensuring that constitutional protections are afforded to every criminal defendant regardless of the crimes for which they are accused.
As law teachers we are particularly concerned about the disquieting message conveyed to law students and graduates entering the profession who may fear that their engagement with pro bono representation of unpopular clients may imperil their future eligibility for federal government service.
…We believe that the criticism of Mr. Adegbile, based on his representation of a death row inmate, is unjust and inconsistent with the fundamental tenets of our profession. The Sixth Amendment to the United States Constitution guarantees the assistance of counsel to persons charged with crimes, and all accused defendants are entitled to zealous representation by competent counsel.
The highest calling of any lawyer is to ensure that the Constitution is applied fairly and in accordance with the decisions of the U.S. Supreme Court to every defendant.
…The debate surrounding Mr. Adegbile’s confirmation also threatens to undermine the widely-recognized importance of lawyers providing pro bono representation to meet unmet legal needs. Providing representation to defendants on death row is among the most challenging, resource-intensive and critically important pro bono counsel a lawyer can provide. Lawyers engaged in this work should be commended rather than denounced for their hard-work and commitment to ensuring that the protections of the Constitution are extended even to those accused of heinous crimes.
…Finally, as every lawyer knows – including the 57 in the U.S. Senate – we are not our clients. The constitutional right to effective assistance of counsel would be turned on its head if the contrary view were advanced. Indeed, had past candidates for public office been held to the Senate’s unjust standard, our nation would have been deprived of the likes of President John Adams (who defended British soldiers charged with killing Americans in the Boston Massacre), Justice Thurgood Marshall (who defended countless black men on death row in the Jim Crow South), and Chief Justice John Roberts (who represented convicted serial killer John Errol Ferguson).
Simply put, the rule of law cannot succeed if attorneys are judged guilty by association with their clients. In rejecting a qualified nominee for public service based on conduct which reflects the best of our profession, the Senate has done a grave disservice to the legal profession and those who seek to enter it.
Monday afternoon, Right Wing Watch reported on conspiracy theories by conservative talking heads Bernard Goldberg and Rush Limbaugh who claim that the shoe-throwing incident in Las Vegas was staged by Hillary Clinton so she could seem more presidential. Similarly, Mark Blitz told WorldNetDaily yesterday that the “blood moon” from Monday night was a divine warning to President Obama about his plans to use executive action and his bully pulpit in the face of GOP obstruction.
Last night, PFAW Director of Communications Drew Courtney joined Rev. Al Sharpton on Politics Nation to discuss these outrageous conspiracy theories and what they say about the GOP and the political process today:
Today, the Senate voted to advance the nomination of Michelle Friedland to the 9th Circuit.
Friedland was one of many superb, highly qualified judges caught up in Republicans' blanket obstruction of judicial nominees, and President Obama was forced to re-nominate her for the court this year. After today’s vote, she still faces 30 hours of potential "post-cloture debate," unless Republicans allow the Senate to move forward on the nomination more expeditiously.
Even though the Senate changed its filibuster rule for judicial and executive branch nominations, lowering the threshold from 60 votes to a simple majority in order to invoke cloture and advance nominees toward confirmation votes, Republicans continue to force cloture votes as a procedural hurdle. The delay created by these votes and the subsequent 30-hour wait before a confirmation can occur amounts to a stubborn form of obstruction in itself.
And this is just one way that Senate Republicans are continuing to hold up the judicial nomination process. Judicial nominees from states with Republican senators also face unreasonable, meritless obstruction due the GOP's abuse of the Senate's "blue slip" policy, by which a senator can unilaterally put a permanent hold on a nominee from his or her state before they even get a hearing.
There are currently 31 judicial nominees on the Senate's calendar, many for long-unfilled vacancies and nearly half for ones that have been declared "judicial emergencies." As vacancies languish, courts can't do their job and in turn, Americans are denied access to justice. If Republican senators ended their obstruction and allowed the 31 pending nominees to go through, that alone would fill a third of the nation's current vacancies.
But based on how Republicans on Capitol Hill are behaving, we shouldn't hold our breath.
Today alone, in addition to wasting the Senate's time and taxpayers' money by forcing the Leadership to hold a cloture vote on Michelle Friedland, instead of just bringing her confirmation straight to an up-or-down vote:
We’re going to keep fighting to get as many more nominees confirmed as we can this year, before time runs out. But the message we send to Republicans in November is tremendously important as well.
Winning or losing at the ballot box could be the difference between a continued vacancy crisis on federal courts dominated by pro-corporate, conservative ideologue judges or the restoration of balance and justice to our courts with the confirmation of highly qualified judges who understand the promises of the Constitution and how the law impacts the lives of real people.
The Senate voted today to invoke cloture on the nomination of Michelle Friedland to the US Court of Appeals for the 9th Circuit. Friedland was first nominated by President Obama on August 3, 2013 to fill a seat designated as a judicial emergency by the Administrative Office of the US Courts.
“Today’s vote is an important step towards addressing our country’s judicial vacancy crisis,” said Marge Baker, Executive Vice President of People For the American Way. “It’s especially important that the Senate move forward to confirm Circuit Court judges, who often have the final say on some of the most important issues that Americans face.”
Friedland’s nomination has been one of many nominations caught up in Republicans’ blanket obstruction of all judicial nominees over the past several months, and President Obama was forced to renominate her this year. After today’s vote, Friedland still faces 30 hours of potential “post-cloture debate,” unless Republicans allow the Senate move forward on the nomination more expeditiously.
“It’s time for the GOP to stop its campaign of obstruction and allow timely, yes-or-no votes on all of the nominees on the Senate’s calendar, and, in particular, the vitally important circuit court nominees,” said Baker. “Despite the recent change in the Senate’s rules, Republicans have continued to obstruct the confirmation of President Obama’s well-qualified judicial nominees. These delay tactics from Republicans don’t just hobble what could be an efficient, effective process; they deprive Americans of the fully functioning justice system they deserve.
“We applaud Senator Reid’s focus on clearing the backlog of these nominees. It’s important that we continue to move forward despite the GOP’s obstruction. Confirming the 31 nominees currently on the Senate’s calendar would fill more than one third of the nation’s current judicial vacancies.”
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.
Early this year, President Obama nominated Judge Beth Bloom, Judge Darrin P. Gayles, Judge Carlos Eduardo Mendoza, and Paul G. Byron to the Southern and Middle District Courts of Florida. Of the four vacancies in the Southern District, three have been declared judicial emergencies. The situation in Florida is so dire that even if every vacancy were to be filled tomorrow, it would not be enough to take care of the courts’ growing workloads. In fact, the Judicial Conference has requested a number of new judgeships for the state, including:
• 5 new judgeships for the Middle District, plus a temporary judgeship; and
• 3 new judgeships for the Southern District, plus the conversion of a temporary judgeship to a permanent position.
It is imperative that these nominations be confirmed swiftly; the Senate’s delays in confirming nominees translate to delays for Floridians waiting for their day in court.
Sen. Marco Rubio stated on NPR last month that he did “not anticipate having any objection to moving forward on any of [President Obama’s] nominees” for the district courts in Florida. In fact, the nominees were recommended by Sen. Rubio, along with Sen. Bill Nelson, based upon the recommendations of a bipartisan committee the two senators put together. Yet to date Sen. Rubio –unlike Sen. Nelson—has not signed the “blue slips” the Senate Judiciary Committee customarily requires before nominees are given a committee hearing. This is cause for some concern in light of Sen. Rubio’s refusal last year to sign off on other Florida nominees to seats that he himself had recommended.
Rubio’s slow-walking of his “blue slips” comes in the context of the GOP obstruction that has needlessly delayed the confirmation of most Obama nominees. After committee approval, President Obama’s district court nominees have been forced to wait an average of three times longer for a confirmation vote than President George W. Bush’s at this point in his presidency. Obama’s circuit court nominees are forced to wait nearly two months longer than Bush’s. This slowing down of the process seems completely gratuitous and politically motivated since the overwhelming majority of Obama’s judicial nominees have been confirmed unanimously or near-unanimously.
The current nominees are also important because they represent much-needed diversity in the federal courts. Gayles, for example, would be the first openly gay African-American man on the federal bench. However, with Rubio’s history of unfavorable treatment of previous nominees he has recommended, there is little expectation that he will help move this nomination process forward any faster. Gayles is up for the same seat to which William Thomas, also an openly gay African American man, was nominated in November 2012, a nomination that Rubio sabotaged.
Some were expecting these four Florida nominees (who were nominated in early February) to have their committee hearings this week, but because Rubio has not submitted his blue slips, that will not happen.
We join advocacy groups in Florida in urging Rubio to help get the state’s nominees confirmed as soon as possible.
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.