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.”
Judicial vacancies slow down courts’ work, drive up litigation costs, cause evidence to go stale, make it harder to settle civil cases, and even pressure defendants into pleading guilty, according to a report released this week by the Brennan Center. The report cites example after example of how not having enough judges erodes our nation’s system of justice. Everyone counts on having their day in court, a fundamentally American principle that is threatened by persistent vacancies. The report quotes Chief Judge William Skretny of New York’s Western District:
We don’t neglect the Seventh Amendment, the right to a civil trial. But we tell people, if this is what you want to do, it will take time to get there.
Heavier caseloads and backlog created by vacancies also take a toll on judges, reducing the amount of time they have to spend on each case.
Chief Judge [Leonard] Davis in the Eastern District of Texas described the situation in his district as “simple math.” With more cases “you have less time to give to [an individual] case,” he explained. “It affects the quality of justice that’s being dispensed and the quantity of work you can complete,” he added.
[Judge Davis] also highlighted the impact of the Sherman vacancy on the timing of sentencing. “It’s a hardship for the litigants,” he explained. “Due to the backlog and [the] vacancy [in Sherman], we have a very high population of criminal defendants, about 200, sitting in county jails, having pled guilty and waiting for sentences. They can’t get their cases processed.” He noted that inmates are typically housed in a county jail because there are no federal facilities available, which is more costly for the government and leaves inmates with fewer work and educational opportunities. “That’s not fair to [the inmates] and adds a great deal of unnecessary cost by having to house them for so long in county jail holding facilities,” he said.
As the report makes clear, vacancies have real impacts for all citizens. This is why PFAW supports the speedy confirmation of qualified judicial nominees to federal courts. Filling judicial vacancies with quality judges will reduce backlogs and costs while allowing the judicial system to better serve all Americans. Maintaining the third branch is one of the most important constitutional functions that the Senate performs.
In an interview earlier this month with the Iowa blog Caffienated Thoughts, noted paragon of consistency Bobby Jindal lamented about “candidates who tell us one thing then go do another” on judicial nominations.
Jindal was discussing recent court decisions in favor of marriage equality, which he suggested could be grounds for recalling judges. In 2012, Jindal joined the failed effort to recall an Iowa Supreme Court justice who had joined the court’s unanimous marriage equality ruling.
The Louisiana governor spent the first half of the interview deriding the Common Core education standards — which he previously backed — as a “federal takeover of education."
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.”
Federal district court nominee Michael Boggs of Georgia had his confirmation hearing before the Senate Judiciary Committee on Tuesday. The hearing was his opportunity to address the many serious concerns we and others have had about his record. When he first ran for office as a state judge, he assured voters that they could know where he stood by looking at his legislative record, including his opposition to marriage equality. But judges aren’t supposed to let their personal political beliefs determine how they rule on cases. In addition, the legislative record he cited is deeply disturbing.
Unfortunately, his testimony in response to senators’ questions only deepened our concerns. So in a letter Wednesday to members of the Senate, People For the American Way expressed strong opposition to this confirmation. PFAW Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon delineated the reasoning behind the organization’s opposition to Boggs’ confirmation.
“[Boggs’] record makes clear that senators should not confirm him to a lifetime position as a United States judge,” the letter states. “…we do not believe Michael Boggs has demonstrated that he would be able to bring to his service as a lifetime judge on the federal courts the requisite impartiality necessary for such a position.”
The five page letter discusses the problems around Boggs’ ability to perform in the role of judge and his actions relating to LGBT equality, reproductive rights, and government promotion of religion. It also discusses the controversy around his support for the inclusion of Confederate imagery in the Georgia state flag, as well as his candor before the Judiciary Committee. You can read the full text of the letter here.
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.