To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: January 13, 2015
Re: White House Outreach to Republicans on Judges Should Be Met with Cooperation, Not Stonewalling
Since Republicans now control the Senate, many are asking how that may affect the confirmation of federal judges, one of the Senate’s most important tasks. The short answer: It shouldn’t.
The Senate GOP engaged in unprecedented obstruction as the minority party, and the increased damage they could do to America’s judiciary now that they control the Senate is significant. They have hardly spent the past six years working in good faith with the White House to strengthen our nation’s courts.
But when Democrats controlled the Senate during the last two years of George W. Bush’s term, they did not stop processing nominations. There were 56 vacancies at the beginning of 2007, and throughout the 110th Congress of 2007-2008, the number of vacancies generally remained at 50 or fewer. The Senate confirmed 68 circuit and district court judges during those two years (about a fifth of Bush’s eight-year total), getting the number of vacancies down to as low as 34 in the early fall of 2008. Even when an unusually high number of vacancies after Election Day drove that number up to 55 by Inauguration Day, that was still just about what it had been two years earlier. Americans have the right to expect similar success in filling vacancies in 2015-2016. The first and necessary step is for the president to choose nominees, but both parties have a role here.
Despite having the sole constitutional authority to nominate judges, President Obama has bent over backwards to cooperate with senators of both parties before exercising that authority. Any conversation about President Obama’s choice of judicial nominees in 2015-2016 has to start with an understanding of that accommodation, and of its reasonable limits.
As of January 12, there are 32 current judicial vacancies without nominees, most of them vacant for over a year, and some going back as far as 2010-2012. Tellingly, all but three are from states with Republican senators (and the oldest such vacancy from a two-Democratic state only dates back to August 2014).
Two Fifth Circuit vacancies have remained open for far too long without nominees because the White House has been consulting extensively with Sens. Cornyn and Cruz, the two Republican senators from Texas. Despite press reports long ago that he had two people in mind – moderate district judges who had been recommended for those positions by Republicans and, in one case, nominated by one – he did not nominate them. Cornyn and Cruz have apparently not specifically approved them, and the White House has chosen to wait and to continue consultations. Obama has shown great willingness to cooperate even though both vacancies were long ago formally designated as judicial emergencies by the Administrative Office of U.S. Courts. One of these vacancies has been open for more than two years, while the other was announced more than a year ago. After such a long period of extensive consultation, and given the significant need for these vacancies to be filled, the president would have been fully justified in making nominations many months ago. That he has not already done so is just one example of how accommodating of Republicans he has been.
That accommodation extends to the architect of Republican obstruction, Mitch McConnell. In June of 2013, Judge Boyce Martin announced that he would retire that August, opening up a Kentucky slot on the Sixth Circuit. Just two months earlier, citing the increasing caseload, the Judicial Conference of the United States asked Congress to create an additional judgeship for the Sixth Circuit. Last winter, President Obama began vetting a potential nominee. While McConnell and fellow Kentucky senator Rand Paul have not commented on her publicly, Obama has not nominated her, or anyone else, in the year and a half since the vacancy was announced. Again, this is not a president who ignores senators of the other party.
No circuit court vacancy is older than the Wisconsin slot on the Seventh Circuit, which dates back to January of 2010. President Obama’s original nominee was supported by the two Democrats who were then the state’s senators, Herb Kohl and Russ Feingold. She was among the dozens of nominees left unconfirmed at the end of 2010 who had to be renominated at the beginning of the 112th Congress, by which time Democratic Senator Feingold had been replaced by Republican Senator Ron Johnson. Johnson then made clear in 2011 that he did not support the nomination, and it was not processed by the Judiciary Committee. Another election cycle came and went, and Kohl was replaced by Democrat Tammy Baldwin. Johnson and Baldwin put together a judicial nominations commission to vet possible nominees, a common practice at the district court level. But they announced that they would also use it to recommend circuit court nominees, which is not at all common since senators generally have a much smaller role to play in the selection of circuit court nominees from their state than they do with district court nominees. Not only that, the senators announced that their commission would not get around to the circuit court nomination until it had first finished with two separate processes for district court vacancies. That has caused significant delay; the commission only began looking at potential nominees this fall. This for a judicial emergency vacant since 2010. While the president would have been fully justified in nominating someone and fighting for their confirmation over Sen. Johnson’s disapproval, he has instead chosen to work with both Wisconsin senators.
Similarly, although Eleventh Circuit Judge Joel Dubina of Alabama announced his intent to take senior status back in February of 2013, and two Alabama district court seats have been vacant since August of that year, the lack of a nominations for any of these judgeships after all this time suggests that the White House is engaged in consultations with Republican Sens. Jeff Sessions and Richard Shelby. (Good-faith consultations can lead to highly favorable results, as we saw at the end of 2014 with a Pennsylvania vacancy on the Third Circuit. After fruitful conversations between the White House and Senators Bob Casey (D) and Pat Toomey (R), this fall’s nomination of Luis Restrepo for that seat was immediately met with the strong endorsement of both senators.)
In all of these cases, there are many highly qualified potential nominees whom progressive advocates and mainstream lawyers would be happy to have on the bench. Some may say the president has put too high a priority on consulting with Republican senators, and that he should make nominations for these seats and then fight for their confirmation over GOP objections. Whatever the merits of this position, that isn’t what has happened: President Obama’s tenure in office has been characterized by remarkable willingness to consult with the Republicans who engage in unprecedented obstruction to keep him from filling vacancies on the federal bench.
Senators of both parties jealously protect their prerogative to be consulted by the White House on judicial nominations in their states, a prerogative that President Obama has respected. But when weeks of consultations drag on into months or even a year or more, it may indicate that something has gone wrong. In the case of the Third Circuit, the White House clearly felt positive about its ongoing conversations with Pennsylvania’s Democratic Sen. Casey and Republican Sen. Toomey, and they led to a quality nominee, Luis Restrepo.
But no senator should see President Obama’s outreach as an opportunity to coerce him into naming an unacceptable far-right nominee. Keeping the judgeship vacant even longer in the hopes that a future (hopefully Republican) president will fill it is not a reasonable option, serving only to make justice less available to those who need it most. At some point, such senators have two choices. They can agree with the White House on someone everyone can support. Alternatively, they should acknowledge the extensive consultations that occurred and present any concerns about the eventual nominee in public before the Judiciary Committee, where the nominee has a chance to respond.
Either way, Republican senators cannot be allowed to indefinitely prevent anyone from being nominated to fill longtime judicial vacancies.
Family Research Council President Tony Perkins, who was once a candidate for U.S. Senate in Louisiana, seems upset that voters can directly elect their state’s two senators, a power that was held by state legislatures until the adoption of the 17th Amendment in 1913. Speaking on his radio program yesterday, Perkins called the amendment “one of the first places we got off in terms of how our government is functioning,” lamenting that “senators are no longer accountable to the states.”
Having voters instead of state lawmakers elect senators, Perkins lamented, “had a drastic impact upon judicial appointees that the Senate has signed off on that overturned state laws, like we’ve seen this rash of overturning these state marriage amendments, that never would’ve happened if these senators who approved these judges were still held accountable to state legislatures.”
Maybe the drafters of the 17th Amendment were just playing the long game for the radical homosexual agenda.
In response to President Obama's upcoming action on immigration, Texas Sen. Ted Cruz has vowed to retaliate by sabotaging the federal court system in his own state.
No, that's not how he phrased it, but that would be the impact of his vow. Yesterday in Politico, Cruz wrote how he thinks the Senate should respond to the president's policy decisions on immigration enforcement:
If the president announces executive amnesty, the new Senate majority leader who takes over in January should announce that the 114th Congress will not confirm a single nominee—executive or judicial—outside of vital national security positions, so long as the illegal amnesty persists.
While such a refusal to perform one of the basic functions of the Senate would harm the entire nation, the damage in Texas would be particularly severe. No state has more judicial vacancies than the Lone Star State. No state even comes close.
As of today, Texas is suffering from eleven current federal court vacancies, with another four known to be opening in the next few months. The White House has worked closely with Sens. Cruz and Cornyn to identify potential nominees, but progress has been slow: Only six of the vacancies even have nominees; three of these have not yet had their committee hearings.
But the other three – for the Eastern and Western Districts – advanced through the Judiciary Committee this morning and are now ready for a confirmation vote by the full Senate. All three would fill vacancies formally designated as judicial emergencies by the Administrative Office of U.S. Courts. Confirming them would be a good start at addressing the vacancy crisis in Texas.
And that's what is it: a crisis. As we wrote earlier this month in a Huffington Post piece entitled Lame Duck Opportunity and Obligation: Confirm Judges:
The situation is even more dire in Texas, where the Senate has a chance to fill three vacancies in the Eastern and Western Districts. The Western District judgeship has been vacant since 2008, and the Judicial Conference has asked for five new judgeships there to carry the load on top of filling all the existing vacancies. Chief Judge Fred Biery discussed the need for new judges last year, saying, "It would be nice to get some help. We are pedaling as fast as we can on an increasingly rickety bicycle." Judge David Ezra, formerly of Hawaii, explained why he was moving to Texas to hear cases in the Western District: "This is corollary to having a big wild fire in the Southwest Border states, and fire fighters from Hawaii going there to help put out the fire."
The Eastern District of Texas is in similar need of getting its vacancies filled during the lame duck: Of the nation's 94 federal districts, only two have had more weighted filings per judgeship than the Eastern District, according to the Administrative Office of U.S. Courts' most recent statistics. Small wonder, then, that the Judicial Conference has asked for two new judgeships there: Even if every judgeship were filled, that just isn't enough. To make matters worse, two more judges in the Eastern District have announced their intention to retire or take senior status next year, making it all the more important to fill the current vacancies now.
Even if the three nominees are confirmed during the lame duck, as they should be, more vacancies in both of those districts will open up early next year. Texas would still have eight vacancies, a number that would rise to twelve in the next few months.
To express his fury at President Obama and rally his right-wing base, Cruz would work to make sure that all these vacancies remain unfilled, which would hurt a lot of innocent Texans.
As Congress returns for the lame duck session after the midterm elections, People For the American Way hosted a member telebriefing on Monday on the critical work that needs to be completed this session to fill court vacancies. The call was kicked off by PFAW Director of Communications Drew Courtney who underscored the significant number of judicial and executive nominations the Senate faces, including President Obama’s new Attorney General nominee, Loretta Lynch.
PFAW members were joined on the call by Josh Hsu, Senior Counsel on the Senate Judiciary Committee, who shared Committee Chairman Sen. Patrick Leahy’s commitment to moving forward on nominees through the lame duck session. He pointed out that much of the GOP obstruction of judicial nominees occurs under the public radar, but it has an enormous impact. If the judicial nominees who can be confirmed by year’s end are stalled instead, that will create a substantial and needless backlog in the next Congress that will delay judicial nominees down the line.
Hsu also gave his thoughts on how Republican control of the Senate may impact judicial nominations. Hsu pointed out that the three most recent two-term presidents all faced opposition Congresses in the final two years of their presidencies, but all continued to move forward on many nominations.
PFAW Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon emphasized the importance of local activists keeping up the momentum around judicial nominations, both during the lame duck and over the next two years. Gordon called on PFAW activists to continue contacting their senators and writing to their local papers. When senators hear from constituents on an issue or see articles written in their local newspaper, Gordon said, they pay attention. Grassroots activism is critical to making sure senators get the message on the importance of the courts, and of confirming nominees before the end of the year.
You can listen to the full audio of the telebriefing here: