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.”
Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell reportedly reached an agreement this afternoon to begin to alleviate the backlog of judicial nominees created by GOP obstruction.
According to reports, Republicans will allow votes on 14 pending district and circuit nominees by May 7th , the first seven before the end of this month.
Reid was forced to file petitions Monday to end GOP filibusters of 17 district court nominees, many of whom had been waiting for votes for more than three months. Prior to the Obama administration, only three district court nominees had been filibustered in the past 60 years. President Obama’s nominees to the federal courts have had to wait on average four times as long for a simple Senate vote as did President Bush’s nominees at this point in his presidency.
People For the American Way’s Marge Baker issued the following statement:
“Today’s agreement is good news for many Americans who have been facing understaffed courts and delayed justice simply because of partisan gridlock in the Senate. But, unfortunately, today’s progress doesn’t end the Republican gridlock. Even after these 14 nominees are confirmed, far too many seats on our federal courts will still be vacant. President Obama’s nominees still face consistent, unprecedented delays. It is absolutely ridiculous that it took such pressure to allow votes on a group of eminently qualified nominees with strong bipartisan support.
“If Senate Republicans want to show Americans they’re serious about doing the work they were elected to do, they should allow votes on the remaining nominees pending on the Senate floor and additional nominees who will be reported by the Senate Judiciary Committee in the coming months. The GOP needs to kick its habit of unprincipled gridlock once and for all.”
Later this month, the Supreme Court will hear arguments in one of the most closely-watched cases in its history: the challenge to the 2010 Affordable Care Act. But in the weeks leading up to those arguments, another fight will be taking place in the U.S. Senate on an issue that in many ways parallels the health care debate, and offers an even clearer view of what have become the policy priorities of the Republican Party.
Since Obama became president, Republicans in Congress have made a clear and conscious choice to kill any attempts to cooperate with him to create solutions for the American people. They have chosen instead to devote themselves to be the party of opposing President Obama - on every issue, big and small. In doing so, they have thrown out not only the trust of the people who elected them, but many of their own formerly held principles.
Even ideas that originally came from Republicans, once adopted by the president become grounds for all-out partisan attacks. One such Republican idea was the individual mandate, which is now at the center of the legal and political challenges to the Affordable Care Act.
Ironically, the judicial branch - to which Republicans are turning with hopes that the policy they came up with is declared unconstitutional - is also at the heart of another stunning turnaround. Republicans used to talk about the importance of bipartisan cooperation in ensuring a fair and functioning judiciary. But that changed abruptly in January 2009, when the political party of the president changed.
When it comes to health care reform, Republicans have chosen to ignore their previous positions in an effort to stick it to the president.
When it comes to the functioning of the federal courts, they have so far chosen to do the same.
This week, Republicans in the Senate, after three years of obstructing nominees to the U.S. courts -- contributing to a historic vacancy crisis that affects over 160 million Americans -- will have to make the same choice. Senate Majority Leader Harry Reid has announced he will file petitions to end the filibusters of 17 nominees to district courts around the country, most long-stalled and unopposed. These, plus the two Obama nominees who have already been filibustered, represent nearly ten times the number of district court nominees who were filibustered under the last two presidents combined. The cumbersome process to end these filibusters will, if Republicans don't relent, tie up the Senate through early April.
During George W. Bush's presidency, Senate Republicans were near-universal in their condemnation of the filibusters of some of Bush's most extreme judicial nominees. Many went so far as to claim that filibustering judicial nominees was unconstitutional.
Once President Obama moved into the White House, it was remarkable how fast they changed their tune. They went overnight from decrying judicial filibusters, to using them wantonly -- not just to stall nominees to whom they found objections, but to stall all nominees , even those whom they favor. At this point in Bush's presidency, the average district court nominee waited 22 days between approval from the Senate Judiciary Committee and a vote from the full Senate. Under President Obama, the average wait has been more than four times longer - over three months.
This is gridlock for gridlock's sake: once Republicans allow them to come to a vote, the vast majority of the president's nominees have been confirmed with overwhelming bipartisan support, demonstrating that the opposition to these nominees was never about their qualifications.
This is more than an inside the beltway partisan game -- it has helped to create a historic vacancy crisis in the federal courts. Approximately one in ten federal courtrooms today sits empty because of Senate inaction. These vacancies create unmanageable workloads for sitting judges, which in turn cause unacceptable delays for Americans seeking their day in court. The Republican Party has been so intent on obstructing President Obama's agenda that they've been willing to sacrifice the smooth functioning of America's courts
. The health care debate highlights the importance of appointing judges who place their duty to the Constitution over a partisan agenda. But it also crystallizes the agenda of opposition that has caused the Republican Party to go off the deep end. When a party's only principle is to be opposed to the other party's agenda, it's the American people who end up paying the price.
On Monday, Senate Majority Leader Harry Reid filed cloture petitions to end GOP filibusters of 17 district court nominees, an extraordinary move brought on by unprecedented Republican obstruction. The Senate GOP started immediately to try to spin the story to try to cover for the gridlock they had created. Here are the five main Republican talking points on the judicial obstruction showdown and the facts that rebut them:
GOP Talking Point #1: Senate Democrats have invented this conflict to make Republicans look bad. This is a little skirmish about timing that’s been blown out of proportion.
Sen. McConnell: “Rather than try to manufacture gridlock and create the illusion of conflict where none exists, why don’t we demonstrate we can kind of get something done together?”
Sen. Alexander: "This is a little disagreement that we have here between the Majority leader and the Republican leader on the scheduling of votes on district judges. It's not a high constitutional matter. It's not even a high principle. It's not even a big disagreement.”
GOP Talking Point #2: The GOP’s obstruction is a direct response to President Obama’s recess appointments.
Sen. Lee: "After the president made four unconstitutional appointments, we could no longer sustain the same level of cooperation.”
GOP Talking Point #3: Some of the filibustered nominees haven’t been on the calendar all that long, what’s the hurry?
Sen. Alexander: “We have 17 district court judgeships that have been recommended by the Judiciary committee. They could be brought up by the majority leader. He has the right to do that but of those 17, six of them - six of them - have been here for less than 30 days. They just got here.”
GOP Talking Point #4: Senate Republicans are floating plans to vote “present” on the 17 cloture petitions, thus continuing to stall the nominees while not being tagged with a “no” vote.
Sen. Cornyn: “Sen. John Cornyn (R-Texas) told POLITICO he thinks Republicans will vote ‘no’ or ‘present’ on the cloture votes on judges and won't allow Democrats to ‘jam’ them.”
GOP Talking Point #5: The Senate has more important issues to focus on.
Sen. McConnell: “It could be that is precisely what my friend the Majority leader has in mind, to try to make the Senate look like it's embroiled in controversy where no controversy exists. So my suggestion is, why don't we do first things first.”
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Senate Majority Leader Harry Reid announced today that he will file petitions to end Republican filibusters of 17 federal district court nominees. The extraordinary move highlights Senate Republicans’ unprecedented obstruction of judicial nominees. During the entire 16 years that Bill Clinton and George W. Bush were in office, there were only two filibusters of district court nominations. If Senate Republicans don’t relent on these 17 nominees, the cloture process could tie up the Senate through early April, with each nominee taking 30 hours of floor time under Senate rules.
“It is absolutely stunning that Republicans are willing to tie up Senate business for more than 510 hours just to make things more difficult for President Obama,” said Marge Baker of People For the American Way. “For the past three years, Senate Republicans have been slow-walking judicial nominees at every step of the process, ignoring the duties they were elected to office to perform and contributing to a historic vacancy crisis in our federal courts. Ultimately, it’s the American people, who rely on fair and functioning federal courts, who pay the price for these political games.”
At this point in George W. Bush’s presidency, the average district court nominee waited 22 days between approval from the Senate Judiciary Committee and a vote from the full Senate. Under President Obama, the average wait has been more than four times as long – over three months.
Currently, about one in ten seats on the federal courts is vacant, affecting access to justice for over 160 million Americans.
The War on Women doesn't stop with reproductive rights. In a new post at Ms. Blog, People For's Marge Baker explains how GOP obstruction of judicial nominees is keeping women -- as well as people of color and gays and lesbians -- from reaching positions of power in the federal courts:
President Obama has made no secret of his goal to make the American courts look like America. Along with the effort to bring more women to the bench, roughly 36 percent of his nominees have been people of color, and he has nominated more openly lesbian and gay individuals to the federal courts than all his predecessors combined.
But the president’s effort to bring a diversity of voices to the federal courts is now facing a major roadblock. Senate Republicans have been obstructing President Obama’s judicial nominees to an unprecedented extent–usually not because of objections to the nominees themselves, but just for the sake of creating gridlock. Indeed, most of President Obama’s nominees have been approved by the Judiciary Committee with unanimous or near-unanimous bipartisan support. Nevertheless, after committee approval, Republicans in the Senate have forced the president’s nominees to wait four times longer to get a yes-or-no vote than President Bush’s nominees at the same point in his term.
As a result, about one out of ten courtrooms in the country are vacant and Americans are facing inexcusable delays as they seek their day in court. One of President Obama’s least-noticed but most long-lasting achievements–putting a qualified, diverse group of judges on our federal courts–has been put at risk.
The Senate Judiciary Committee today approved Toledo, Ohio lawyer Jeffrey Helmick to sit on the U.S. District Court for the Northern District of Ohio. Helmick will now join 21 other committee-approved judicial nominees who are waiting for a vote from the full Senate.
Eleven of these nominees have been waiting over three months for a simple vote. In fact, President Obama’s nominees to the federal judiciary have been forced to wait an average of 101 days after committee approval for a vote from the full Senate. At this point in George W. Bush’s presidency, the average was 24 days.
The seat Helmick has been nominated to fill has been vacant for nearly two years.
Shaun Tucker of the Ohio Coalition for Constitutional Values said, “The Senate should quickly schedule an up-or-down vote on Helmick’s nomination so that he can get to work for the people of Ohio.”
“Ohioans rely on our federal courts for fair and swift justice,” said the coalition’s chair Marie Smith. “The Senate should put the needs of Ohioans above partisan gridlock.”