Now that we’re well into President Obama’s fifth year in office, there are no prizes for guessing what the GOP’s response is to a diverse slate of nominees to the critical DC Circuit Court of Appeals.
Obstruct. Obstruct. Obstruct.
Even before they were nominated, Republican Senators were laying the groundwork to block anyone nominated to the circuit. Now that President Obama has nominated three unquestionably qualified jurists with broad support from across the ideological spectrum…Republican leaders are still intent on denying them simple yes-or-no votes.
We’ve created a simple graphic to share on Facebook to let Republicans know you’re watching how they treat this diverse set of nominees. Click here to share.
WASHINGTON – People For the American Way today applauded the Senate confirmation of Tom Perez as Secretary of Labor. Marge Baker, Executive Vice President of People For the American Way, released the following statement:
“Anyone who cares about the fair treatment of workers or civil rights should be thrilled by the confirmation of Tom Perez. During his time in the Justice Department, Perez’s commitment to protecting the rights of Americans – whether they are women, people of color, LGBT people, or people with disabilities – has been extraordinary. He has spent his career fighting for the rights of all Americans and now he will be able to take that passion and commitment to the Department of Labor.
“Even though today’s vote is an important step forward, we must continue to confront the partisan gridlock in the Senate that is hurting the American people. We must ensure that the President’s judicial nominees, like his executive nominees, also receive up and down votes. The American people understand that when senators decide they’d rather play politics than do their jobs, it harms not only Congress but all of our country.”
People For the American Way today applauded the cloture vote ending the obstruction of President Obama’s nominee to lead the Consumer Financial Protection Bureau, Richard Cordray.
“Richard Corday’s nomination has been blocked for years by Republican intransigence,” said Marge Baker, Executive Vice President at People For the American Way. “Today’s vote to finally move towards an up-or-down vote isn’t just a big win for consumers—it’s a big win for a government that actually works for all Americans.
“Moving forward, however, we’re still a long way from a fully functioning Senate. Six more executive nominees are currently facing Republican filibusters. And the President’s judicial nominees still face unprecedented obstruction in this Senate. Republicans are already digging in their heels to block votes on nominees to the DC Circuit Court of Appeals simply because they don’t want President Obama to be able to fill the seats.
“This morning’s vote is an important step in the right direction, but there’s still a lot to be done to end the partisan gridlock that’s deeply harming our country.”
To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Re: Senator Grassley's Misleading Spin on Judges
Date: April 11, 2013
Yesterday, Sen. Chuck Grassley – the senior Republican on the Senate Judiciary Committee – made a statement that, if taken on its face, would convince an uninformed listener that Senate Republicans have been cooperating with President Obama in filling judicial vacancies. However, his highly edited view of reality leaves out vital facts that Iowans need to know if they are to judge for themselves whether their representative in the Senate is being straight with them.
Sen. Grassley said:
Yesterday, the Senate confirmed yet another judicial nominee. That was the 10th judicial nominee we confirmed so far this year, including four circuit court nominees. To put that in perspective, as of today’s date in 2005, we had confirmed zero judicial nominees.
Unfortunately, Sen. Grassley left out the details of that tenth nominee, Patty Shwartz. On March 8 of last year, the Judiciary Committee concluded that she was qualified and forwarded her nomination to the Third Circuit Court of Appeals to the full Senate. However, under Senate rules, the majority cannot even schedule a confirmation vote without the consent of the minority party (or a 60-senator vote to break the filibuster). For more than a year, Senate Majority Leader Harry Reid was stymied in his efforts to schedule a fair yes-or-no confirmation vote for Shwartz. But for Republican obstruction, she would have been confirmed a year ago; that she was confirmed this year is not something Sen. Grassley should be bragging about.
Sen. Grassley also left out the details of the three other circuit court nominees whose confirmation so early in the President’s second term he cites. All three were unopposed or nearly unopposed but nevertheless blocked for months by Republicans, always without cause. They are:
• Richard Taranto (Federal Circuit) (denied a yes-or-no confirmation vote since March 29 of last year, and finally confirmed last month in a 91-0 vote)
• Robert Bacharach (10th Circuit) (filibustered since June 7 of last year, and finally confirmed in February in a 93-0 vote)
• William Kayatta (1st Circuit) (denied a vote since April of last year, and finally confirmed in February this year in an 88-12 vote)
In fact, of the ten confirmed judges this year, a full seven of them were approved by the Judiciary Committee in the previous Congress and would have been confirmed then but for Republican obstruction.
Including all these victims of partisan obstruction as examples of partisan cooperation takes gall. It also shows contempt for the American people in general and, in particular, the Iowans who Grassley was elected to serve.
His statement continued in the same misleading vein:
Those 10 nominees are on top of a near record setting 112th Congress. During the 112th Congress, we confirmed 111 of President Obama’s judicial nominees. You have to go back 20 years to find a more productive Congress (103rd).
Again, this sounds like a record that Republicans can be proud of, until you learn a key fact that Sen. Grassley is hiding: Many of those confirmed judges from the 112th Congress (2011-2012) would have been confirmed in the 111th Congress (2009-2010) but for obstruction by Sen. Grassley and his party. President Obama started the 112th Congress renominating 42 people who had been nominated in the previous Congress. Of these, 17 had been approved by the Judiciary Committee in the 111th Congress but denied a fair yes-or-no vote. Once more, Sen. Grassley is including victims of partisan obstruction as examples of partisan cooperation.
This deception relies on people not being given the full picture. It assumes that people are kept ignorant of the fact that President Obama’s nominees, regardless of their strong bipartisan support, are on average forced to wait three to four times longer after committee approval for a yes-or-no confirmation vote than was the case for George W. Bush’s nominees at the same point in his presidency: For circuit court nominees, it is 153 days (Obama) vs. 37 days, and for district court nominees, it is 101 days vs. 35 days.
We urge you to write a story about Sen. Grassley’s efforts to obscure the undeniable fact that his party has been engaged in unprecedented obstruction of judicial nominees.
WASHINGTON – People For the American Way called the filibuster reform deal set to be announced by Senators Harry Reid (D-Nev.) and Mitch McConnell (R-Ky.) only a modest step in addressing the extraordinary GOP abuse of Senate rules. Among the provisions of the expected reform deal are a rule addressing filibusters of the motion to proceed to legislation and a rule reducing the maximum post-cloture debate for district court nominations to two hours from thirty.
“It’s important that we as a country acknowledge the need to address the unprecedented obstruction undermining the Senate’s ability to do its work,” said Marge Baker, Executive Vice President of People For the American Way. “Americans elect members of Congress to do their jobs and solve the pressing issues facing the country. That’s not possible when one party is committed to mindless obstruction.”
People For the American Way has long documented the harm this obstruction causes to our judicial system. As detailed in PFAW’s recent memo, “Empty Courtrooms in Obama’s First Term: A Slow Start on Judicial Nominations Magnified Many Times Over By Republican Obstruction,” Senate Republicans have blocked the nomination and confirmation of federal judicial nominees at an unprecedented rate during President Obama’s first term, leading to record vacancy levels in the federal courts. While there were 55 vacancies when President Obama took office, that number leapt to 90 during his first year and has rarely dropped below 90 since then. As the second term begins, there are over 100 vacancies.
“While these reforms will offer some relief against the persistent obstruction, they fall far short of what is necessary to fix the problem,” Baker continued. “Limiting the time that votes on district court nominees can be delayed after cloture is invoked is important, but the problem extends far beyond the district court level. We are disappointed, in particular, that the party leaders were unable to agree on reforms that would prevent needless delay of confirmation votes for critically important circuit court nominations when 60 senators have already voted to end a filibuster. With four long-pending circuit court nominations held up for months – two since March, one since April, and one since June – and denied a vote even during the lame duck, this does not bode well for how Republicans intend to treat President Obama’s circuit court nominees during the 113th Congress.”
Beyond judicial nominations, obstruction impacts the Senate’s entire legislative agenda. During President Obama’s first term, the number of motions to prevent bills from being openly debated reached a historic high. Republicans are now abusing procedural tactics to impede even the most routine functions of government.
“It’s time for Senate Republicans to understand how impatient the American people have become with their tactics blocking progress on a variety of issues critical to our country’s wellbeing,” said Baker. “These reforms take modest steps in that direction, but we will continue to be vigilant in fighting this needless obstruction.”
Senate GOP leader Mitch McConnell announced Wednesday that he will block the confirmations of federal circuit court nominees from now until after the November elections, citing what he claims is a Senate tradition sometimes called the “Thurmond Rule.” Ten percent of federal judgeships are vacant, creating caseload backlogs so large that 30 of those seats are considered “judicial emergencies.”
“Senate Republicans have once again put politics ahead of the needs of the American people,” said Michael Keegan, President of People For the American Way. “Blocking the president’s well-qualified nominees seriously hampers the ability of the federal courts to serve Americans who seek justice in a court of law.
“Acting on the president’s nominations is the Senate’s responsibility to the American people. Unfortunately, politics is the GOP’s top priority, and it’s clear that Senator McConnell would prefer to keep the judiciary dangerously understaffed in hopes of someday filling those seats with a Republican president’s nominees. Because obstruction has been their strategy since losing the White House, most of the nominees caught in their trap would ordinarily have been confirmed long ago. Thanks to the GOP’s decision to shirk its responsibility by playing games, the backlog of nominees continues to grow and the American people are denied a fully functioning justice system.
“The President’s nominees awaiting confirmation are well qualified and will serve fairly and impartially. Almost all received strong bipartisan support from the Senate Judiciary Committee. There is absolutely no legitimate reason to block these confirmations, and the GOP should be ashamed to cite an indefensible tradition to justify this act.”
The Senate today defeated a filibuster of the nomination of Andrew Hurwitz of Arizona to sit on the Ninth Circuit Court of Appeals in a 60-31 cloture vote. Once he is confirmed, Hurwitz, currently a justice on the Arizona Supreme Court, will fill one of 90 vacancies and 31 officially-designated judicial emergencies nationwide. He will serve on the Ninth Circuit, the busiest federal appeals court in the country. Despite the support of both of his Republican home-state senators and bipartisan approval in the Judiciary Committee, Republicans stalled Hurwitz's nomination on the Senate floor for over three months.
“Andrew Hurwitz, whose experience includes nine years on the Arizona Supreme Court, is clearly qualified to sit on the Ninth Circuit,” said Marge Baker of People For the American Way. “President Obama nominated a highly qualified jurist who garnered bipartisan support. Senators McCain and Kyl recognized his qualifications and supported his nomination to the Ninth Circuit, and he was approved by the Judiciary Committee with unanimous Democratic and significant Republican support. Yet for the Republican leadership who have blocked ongoing Democratic efforts to schedule a vote, that wasn't enough to earn Justice Hurwitz a timely vote from the Senate, even for a vacancy that's so urgent it's been labeled a ‘judicial emergency.’ Filibusters used to be reserved for only the most controversial of nominees. Today, Senate Republicans seem eager to block the workings of Congress and the courts at every opportunity.”
The Senate today confirmed the nomination of Paul J. Watford to sit on the Ninth Circuit Court of Appeals. Watford, who has a stellar resume as a Supreme Court clerk, prosecutor and appellate litigator will fill one of three emergency vacancies on the Ninth Circuit, the busiest circuit in the country. He will become just the fourth African American ever to serve on the Ninth Circuit.
Despite Watford’s qualifications and the urgency of filling the vacancy, Senate Republicans stalled his nomination for over three months after he was approved by the judiciary committee. Sen. Reid was forced to file cloture to break the months-long filibuster of Watford’s nomination. Faced with widespread support for the nomination, including from their own constituents, Republicans dropped their planned filibuster this afternoon and at last allowed a straight yes-or-no vote. Watford was confirmed in a 61 to 34 vote.
“Paul Watford is a stellar choice for the Ninth Circuit,” said Marge Baker of People For the American Way. “He promises to be an intellectual leader on the court and a fair and thoughtful jurist. He also makes history as only the fourth African American judge ever elevated to the Ninth Circuit, and one of only two African Americans currently sitting on the 29-member court.
“It is shameful that Senate Republicans filibustered for so long such a highly qualified nominee to fill an emergency vacancy. Sen. Reid is to be commended for forcing a vote. Again and again, the Senate GOP has used political gridlock to interfere with the proper functioning of America’s courts. The result has been an unprecedented vacancy crisis and unacceptable delays for individuals and businesses seeking their day in court. The American courts deserve better than this unprincipled, unrelenting gridlock.”
In a summit at the White House yesterday with 150 grassroots and legal leaders from 27 states, Attorney General Eric Holder and White House Counsel Kathy Ruemmler stressed the importance of maintaining fair and effective federal courts, and criticized Senate Republicans for creating gridlock that has left one in ten federal court seats vacant.
Holder stressed President Obama’s effort to nominated qualified and diverse nominees to the federal courts. 46 percent of the president’s confirmed judicial nominees have been women and 37 percent have been people of color, more than under any other president in history. “Our people are diverse, they are qualified and they will serve the American people well in their time on the bench,” he said.
While President Obama has nominated dozens of highly qualified, diverse Americans to the federal bench, his nominees have met with unprecedented obstruction from Senate Republicans.
“Republican obstruction and these delays on the floor aren’t happenstance. They’re strategic and they’re having a devastating impact,” Ruemmler told attendees.
Ruemmler said that the conservative movement “understands the important role courts play in all of the issues we care deeply about as a country.”
Today’s summit was a sign that progressives are beginning to care deeply about the courts as well.
“This matters. This really matters,” Holder said. “This is a key legacy for any president. It’s one of the ways that a president’s success can be measured.”
To: Interested Parties
From: Marge Baker, People For the American Way
Date: May 4, 2012
Subject: Behind the Scenes, Silent Obstruction of Judicial Nominees
Senate Republicans’ systematic obstruction of President Obama’s nominees to the federal courts is by now well known. The President’s confirmed nominees have on average waited four times as long between committee approval and a vote from the full Senate than did George W. Bush’s nominees at this point in his term. The vast majority of these, once the GOP’s obstruction options are exhausted, are confirmed overwhelmingly.
What is less well known – and largely hidden in behind-the-scenes Senate procedure – is that this systematic obstruction often begins long before a nominee has been sent from the Judiciary Committee to the Senate floor. In fact, Senate Republicans are routinely using procedural tactics to delay the consideration and approval of the President’s judicial nominees by the Judiciary Committee.
This silent obstruction adds another layer of gridlock to an already gridlocked process – and it does so away from the spotlight of the media and the scrutiny of constituents.
Pre-Committee: Withholding Blue Slips
Under procedures adopted by Chairman Leahy as a bipartisan courtesy to his fellow senators, the Judiciary Committee does not consider a judicial nominee until both of that nominee’s home-state senators have submitted a “blue slip” allowing the nominee to move forward. The submission of a blue slip does not imply support of the nominee – merely that the nomination should be considered by the Judiciary Committee.
Despite the serious implications of withholding a blue slip, senators can do so without giving a reason and even without a public announcement – making it impossible to know how often the practice occurs. But several recent incidents that have been publicized show just how willing some GOP senators are to prevent unquestionably qualified and mainstream nominees from even reaching a Senate hearing.
In Arizona, a two-year-old emergency vacancy remains unfilled despite the existence of a well-qualified nominee who has been waiting since June 2011 for a Senate hearing. Rosemary Márquez, President Obama’s nominee to the District Court based out of Tucson, was rated unanimously qualified by the American Bar Association and has the support of a large cross-section of Arizona’s legal community. But Sens. McCain and Kyl have held up Márquez’s nomination for ten months by refusing to submit blue slips to the Judiciary Committee.
Márquez is not alone. In February, the President nominated Elissa Cadish, a state district court judge in Nevada, to fill an empty seat on the U.S. District Court. Cadish is widely recognized as being qualified for the federal bench, including by a unanimous panel of the American Bar Association. But Sen. Dean Heller is withholding his blue slip anyway and thus blocking the Judiciary Committee from even considering her nomination.
Heller’s objection to Cadish is this: one month before the Supreme Court overturned decades of case law to hold that the Second Amendment guarantees an individual right to bear arms, Cadish stated – accurately – that then-current case law did not recognize such a right. For a nominee for a lower federal court, who is expected to rely on Supreme Court precedent rather than create her own, it was a statement of fact, one that four members of the United States Supreme Court agreed with just a few weeks later. For Heller, it disqualifies her from even being considered for a federal judgeship.
Similarly, Eleventh Circuit nominee Jill Pryor is being kept from a Senate hearing by home-state Republican senators who have already acknowledged that she is qualified for a federal judgeship but want her in a different seat – one on the U.S. District Court. Georgia senators Saxby Chambliss and Johnny Isakson have said that they’re fine with Pryor being a federal judge. Pryor’s skills and experience aren’t in doubt: she’s received a host of awards for her work in the courtroom and has been a leader in Georgia’s legal community. The senators’ beef is simply that they have someone else in mind for the Circuit Court seat the president nominated her to, and they seem willing to keep an emergency vacancy unfilled until they get their way.
All of these nominations are being held hostage by Republican senators who are silently filibustering them by refusing to consent to the Judiciary Committee’s even holding hearings on their merits.
In Committee: No-Shows and Routine Delays
Twice this year, Republicans on the Judiciary Committee have prevented nominees from moving forward by simply not showing up at committee hearings and preventing a quorum. These “boycotts” kept the committee from holding votes on nominees who had already had hearings before the committee, further delaying already delayed nominations.
The walk-outs provided a more public accent to what was already routine obstruction by Judiciary Republicans. Committee rules allow the minority party to delay votes on nominees by requesting a one-week holdover, a provision designed to permit members who have questions about a particular nominee to get those questions answered. Under President Bush, such holdover requests were occasionally made to consider particular questions about particular nominees. Under President Obama, Republicans on the Judiciary Committee have used this tactic routinely, holding over all but five of more than 150 nominees.
Senate Republicans have been using nearly every procedural tactic at their disposal to stall President Obama’s judicial nominees at every step in the nominations process. Very few of these maneuvers come with explanations, and those that do are often blown far out of proportion.
The result has been a record vacancy crisis in the federal courts, inexcusable delays for Americans seeking justice, and eroded trust in gridlocked Congress.
Media contact: Miranda Blue, (202) 467-4999, firstname.lastname@example.org
The Atlantic’s Andrew Cohen explains why confirming nominees to our federal courts and helping to boost the economy aren’t two separate issues:
It's not complicated. When a federal judgeship goes vacant because of Senate intransigence, where judicial nominees with bipartisan approval are held up for no good reason, it's not typically the criminal cases which get unreasonably delayed. Criminal defendants have a speedy trial right under the Sixth Amendment. There is no such right for civil litigants. This means those litigants have to wait, often for years, for a trial judge to make available a time for the disposition of a dispute. The problem only gets worse, like it is now, when district courts are understaffed and judges are forced to handle more than their expected case load.
And who are civil litigants in our nation's federal courts? They are corporations and small business owners, investors and merchants, employees and employers, people just like you and me. Well, maybe not you and me since I didn't file a lawsuit this past year and you probably didn't either. But a lot of other people sure did. In 2010, according to federal court records, no fewer than 282,896 federal lawsuits were filed in America. In 2011, 289,252 lawsuits were filed, a 2.2 percent increase from the year before. The latest statistics reveal that there are currently 270,839 pending civil cases in our federal courts.
There's more alarming news. As Mike Scarcella reported last week in the National Law Journal, the Administrative Office of the U.S. Courts announced last week that there was "an 11 percent increase in intellectual property cases and a 15 percent increase in consumer credit filings" last year. The total number of pending cases in the federal system, including criminal cases, now is 367,600 and, guess what? Even as the number of federal laws (and federal crimes) increases, Congress plans to cut the budget for the federal judiciary come next January. Fewer judges. A smaller budget. Signposts on the road to third-world justice.
So what happens to many of these cases when our benches remain empty? They languish in limbo and the litigants have to live with the financial uncertainty that pending litigation brings. If you are sued for a million dollars, for example, you might choose not to invest that million dollars in a new store, or in hiring new employees, until the lawsuit is over. And if you are suing for money, you aren't likely to spend it until you get it. What federal trial judges do for these litigants, therefore, isn't just to pick a winner and a loser in a particular. The court system provides the oil that helps run the machinery of commerce.
The Leadership Conference on Civil and Human Rights organized a call yesterday with Sen. Chris Coons of Delaware and attorneys from Ohio, South Carolina and Arizona to discuss how judicial nominations gridlock in Washington hurts Americans seeking justice around the country.
On Wednesday, Senate Majority Leader Harry Reid reached a deal with Republicans to allow votes on 14 of 22 stalled judicial nominees. The first two of those were confirmed yesterday with overwhelming bipartisan votes.
The deal, while it represents more progress than Senate Republicans were previously willing to allow, still leaves eight nominees without even a vote from the Senate until May at least. Three of these nominees are from Ohio, Arizona and South Carolina.
This procedural gridlock is often portrayed as an inside-the-beltway issue. However, it has a real impact on American seeking justice from our federal courts.
Greg Kuykendall, a Tucson attorney who joined the call, told of a client who had to wait 14 months in jail before a District Court judge with an unmanageable caseload was finally able to review his claim that he was being detained in violation of his constitutional rights. “It effectively made the prisoner spend an additional 14 months in unconstitutional confinement, as a result of the judicial emergency,” Kuykendall said.
Cleveland attorney Michael Meuti told of a Ohio business that had to wait 14 months for a federal judge to review charges that had been brought against it. In the meantime, the business had to endure the uncertainty and cost of having a lawsuit hanging over it.
“Understaffed courts struggle to provide efficient and effective justice,” Meuti said. “When judicial vacancies increase, so do the workloads of each sitting judge. In turn, both individuals and businesses must wait longer for their cases to be resolved and must endure the uncertainties and costs of litigation for a greater period of time. President Obama’s nominees have waited four times longer than his predecessor’s. It is time for the Senate to abandon its obstructionist agenda, which can serve only to make justice harder to obtain for everyday Americans and American companies.”
Armand Derfner, a Charleston, South Carolina attorney, added, “"These nominees are being obstructed for no good reason. They’re suitable, qualified, and many have bipartisan support. The Senate should stop delaying votes to fill these vacancies.”
The Senate today voted overwhelmingly to confirm two nominees to federal district courts, Gina Groh of West Virginia and Michael Fitzgerald of California’s Central District. Both nominees had been waiting over four months - Groh more than five - for votes from the full Senate, despite having received unanimous approval from the Judiciary Committee. They were the first nominees to receive votes as part of a Senate deal to move forward on 14 of 22 deliberately stalled judicial nominations.
Fitzgerald becomes the fourth openly gay person ever confirmed to the federal bench, the third during the Obama administration.
Marge Baker of People For the American Way issued the following statement:
“Because of today’s confirmation votes, people of West Virginia and Southern California will have a smoother path to justice as they seek their day in court. Votes like these should be the norm, not the exception. Judges Groh and Fitzgerald are both exceptionally qualified and enjoyed unanimous bipartisan support from the Judiciary Committee. It is absurd that they had to wait months simply to receive an easy and overwhelming confirmation vote.
“It is even more absurd that a deal had to be cut before Senate Republicans would even consider these nominees. That qualified and uncontroversial nominees like Groh and Fitzgerald are met with months-long filibusters is proof that the Senate GOP is more interested in creating gridlock than in doing its job.
“While President Obama’s judicial nominees have met with unprecedented obstruction, they have also been unprecedented in their diversity. For the first time in history, nearly half of this president’s confirmed nominees to the federal courts have been women. He has also nominated more people of color to the bench than any previous president and has nominated more openly gay people than all of his predecessors combined.
“The confirmations of Groh and Fitzgerald are the latest step forward in the president’s effort to put qualified, diverse judges in our federal courts – progress that has too often been stalled by GOP obstruction.”