judicial nominations

Rios: Female Justices 'Rudely' Interrupting Scalia, 'Speaking Inappropriately'

The topic of discussion on Sandy Rios’ American Family Radio program Wednesday was diversity among federal judicial nominees. The Washington Post published a story over the weekend detailing President Obama’s largely successful effort to appoint more women, people of color and openly LGBT people to federal judgeships. The voice of dissent in the article was that of the Committee for Justice’s Curt Levey, who told the Post that the White House was “lowering their standards” in nominating nonwhite judges. So naturally, Rios invited Levey on as a guest and explained to him why she disapproves of President Obama’s diverse judicial nominations.

In particular, Rios disapproves of Obama’s Supreme Court nominees, Sonia Sotomayor and Elena Kagan, respectively the third and fourth women ever to sit on the high court. Sotomayor and Kagan, Rios says, have been forgetting their place and behaving “rudely,” “interrupting” and “speaking inappropriately” to, of all people, Justice Antonin Scalia.

While Levey correctly notes that “Scalia can give it out as well as take it,” he agrees with Rios that Sotomayor, the Supreme Court’s first Latina justice, “has occasionally, at least, stepped over the line.” In particular, he says Sotomayor – who he once accused of supporting “violent Puerto Rican terrorists” --  “sort of lost it” during arguments on the Voting Rights Act, when she contradicted Scalia’s stunning assertion that the law represents a “perpetuation of racial entitlement.”

In fact, while Scalia’s bombast provoked audible gasps in the hearing room, Sotomayor waited several minutes before calmly asking the attorney challenging the Voting Rights Act, “Do you think that the right to vote is a racial entitlement in Section 5?"

Later, Rios, with an impressive lack of self-awareness, marvels that progressive groups criticized Scalia for his remarks. “Groups on the left,” Levey responds, “shall we say, like to personalize things.”

Rios: I read an article that Sotomayor and Elena Kagan, at least this article was intimating that they are behaving in a – these are my words – sort of rudely on the bench, to Scalia and to others, interrupting, speaking inappropriately. Have you observed that? Do you know what I’m talking about and is that true?

Levey: Um, yeah. I mean, you know, Scalia can give it out as well as take it, but yeah, Sotomayor has gone over the line a number of times. Most recently in the Voting Rights Act case, which was just last week, where, you know, Scalia had the nerve to speak the truth and refer to the Voting Rights Act as “racial preferences,” which of course is what it’s become by guaranteeing that there be minority districts formed, minority congressional districts. And, you know, Sotomayor sort of lost it when Obama [sic] said that, interrupted and you know, basically made fun of Scalia’s comment. So yeah, I think they have the right to be aggressive up there, but Sotomayor has occasionally, at least, stepped over the line.

Rios: And on the Voting Rights Act and Scalia’s comments, you know, there were demonstrators at the Court last week, hundreds of them, demonstrating against Antonin Scalia. I don’t remember that happening. I don’t remember a Supreme Court justice – doesn’t mean it hasn’t happened – but I don’t remember it being a subject of public demonstrations.

Levey: No. Typically they will, you know, they’ll, protestors at the Supreme Court will focus on issues, not justices. But you know, that changed of late. There’s been in the last two years a lot of, you know, progressive groups have gone personally after Scalia and especially Thomas and his wife. But you know, we see that in so much of politics, that groups on the left like to, shall we say, personalize things.

Rios: Yeah, as like in Alinsky, yes, personalize and target, yeah, so we are seeing some very new things and actually pretty dangerous I think.

Earlier in the program, Rios and Levey lamented the fact that President Obama has had more openly LGBT people confirmed to the federal bench than all of his predecessors combined. Echoing right-wing arguments made against Romney advisor Richard Grennell, who was forced to resign last year after less than a month on the job, Rios claimed she didn’t mind that the president was appointing gay people to federal judgeships, but that they are “activists who are trying to change the law.”

Levey: You know, I don’t have any problem with him nominating gay and lesbian nominees. The problem is that they should be gay and lesbian nominees who respect the Constitution. You know, there are…

Rios: I don’t disagree, Curt, just for the record, I don’t disagree with that. It’s the activists, activists who are trying to change the law that I will have trouble sitting on the bench.

Levey: Exactly. He’s not appointing, you know, conservative or even moderate, you know, gay Americans, he’s appointing very radical gay Americans. And, you know, again, it’s not so much any individual nominee as it is the pattern here. Of the 35 or so nominees who are pending now, only six are straight white males, even though about half the legal profession is straight white males. So, do straight white males have some, you know, right to a certain number of seats? Of course not. But if you were doing it in a balanced way without any preference for minorities of various types, then you’d probably wind up with about 17 or 18 of those 35 being straight white males. The fact that there’s only six tells us that there’s a system of preferences going on.

PFAW: GOP and NRA Leadership Keep Two Qualified Women off the Bench

WASHINGTON – Today, Nevada judge Elissa Cadish withdrew her nomination to sit on the U.S. District Court for the District of Nevada, more than one year after President Obama first nominated her to the position. Despite her sterling qualifications, Cadish was never even granted a hearing before the Judiciary Committee because Nevada Sen. Dean Heller refused to give permission for her nomination to move forward.

Earlier this week, the nomination of D.C. Circuit Court of Appeals nominee Caitlin Halligan was blocked by Senate Republicans under similar circumstances. Halligan and Cadish both faced unfounded attacks from the gun lobby’s leadership, Halligan for a position she took on behalf of a client and Cadish for correctly describing the state of Second Amendment law before the Supreme Court’s District of Columbia v. Heller decision. Both have clearly stated that they understand and would follow Supreme Court precedent on gun rights.

“Senate Republicans and the gun lobby have worked hand in hand to keep these two exceptionally qualified women off the federal bench,” said Marge Baker, Executive Vice President of People For the American Way. “Neither Cadish nor Halligan has displayed character or ethics problems let alone any sort of extreme ideology like that they were accused of. Yet Halligan was never allowed an up-or-down vote from the Senate, and Cadish never even had the opportunity to answer senators’ questions on her record before the Judiciary Committee.”

“The sinking of these two nominees shows just how far the Senate GOP and the gun lobby are willing to go, and how badly they are willing to stretch the facts, in order to keep President Obama’s nominees off the federal bench,” Baker added.

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PFAW: Filibuster of Caitlin Halligan 'Destructive' and 'Politically-Motivated'

WASHINGTON – An effort to end the Republican filibuster of DC Circuit Court of Appeals nominee Caitlin Halligan fell short in a 51-41 vote in the Senate today.

Marge Baker, Executive Vice President of People For the American Way, issued the following statement:

“Senate Republicans have once again decided to put their own partisan interests above the will of American voters and the health of our system of justice. Caitlin Halligan is an exceptionally qualified, widely respected and unquestionably mainstream nominee. But a minority of U.S. senators, egged on by conservative activists and a party leadership with their own narrow agendas, have cherry-picked and misrepresented her record in order to keep her off the federal bench.

“Let’s call the filibuster of Halligan what it is: a politically-motivated attempt to keep President Obama’s nominee off the second highest court in the country. Four years into Obama’s presidency, more than one-third of the DC Circuit’s seats are vacant and the president has yet to have a single nominee confirmed to the court. In the meantime, the court continues to be dominated by far-right Republican-appointed judges who have pushed an extreme right-wing agenda on issues including environmental protection, workers’ rights and public health. This is not a coincidence.

“The American people have twice elected President Obama, yet a minority of U.S. senators continues to place a stranglehold on his judicial nominees. This has not only damaged our federal courts, which are facing an ongoing vacancy crisis, but has hurt the credibility of the U.S. Senate. Americans deserve better than this destructive, politically-motivated gridlock.”

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Senate at Last Confirms Bacharach, Example of GOP’s Extreme Obstruction

WASHINGTON – In a 93-0 vote today, the Senate confirmed Robert Bacharach of Oklahoma to the Tenth Circuit Court of Appeals, almost nine months after the Judiciary Committee first sent his nomination to the full Senate. His nomination faced extraordinary delays despite public support from his homestate Republican senators James Inhofe and Tom Coburn.

People For the American Way Executive Vice President Marge Baker released the following statement:

“Robert Bacharach’s confirmation to the Tenth Circuit Court of Appeals is good news for residents of Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah, who will now see their justice system move a little more smoothly. Circuit courts have a tremendous influence on Americans’ pursuit of justice and the shape of American law, since the only higher court – the Supreme Court – hears so few cases. But the extraordinary delay in confirming Bacharach is a stark symbol of the dysfunction that Senate Republicans have brought to the judicial confirmations process.

“When President Obama nominated Bacharach in January 2012, his nomination was greeted enthusiastically by Sens. Inhofe and Coburn. In June, his nomination passed smoothly through the Judiciary Committee, where it was approved with broad bipartisan support. Then, Senate Republicans proceeded to stall his nomination on the Senate floor for no apparent reason. At the end of July, Majority Leader Harry Reid tried to hold a vote on Bacharach’s nomination, but was met with a purposeless GOP filibuster. Sen. Coburn had said such sabotage of his state’s nominee would be ‘stupid,’ but he and Sen. Inhofe ended up cooperating with their party’s leadership and refusing to help break the filibuster.

“I hope that today’s long-overdue confirmation of Bacharach signals a new willingness from the Senate GOP to work to quickly consider and vote on the president’s nominees. They have a lot of work to do. Three additional federal circuit court judges are awaiting votes from the full Senate: Caitlin Halligan, President Obama’s nominee to fill one of four vacancies on the DC Circuit Court of Appeals, who was first approved by the Judiciary Committee in 2011; Third Circuit nominee Patty Shwartz, who has been on the Senate calendar for a year; and Federal Circuit nominee Richard Taranto, who has waited 11 months for a Senate vote.

“Last term, President Obama’s confirmed federal judicial nominees waited an average of three times as long between committee approval and confirmation as did President Bush’s first-term nominees. As the nation suffers the consequences of a federal courts vacancy crisis that it the Senate GOP has helped to perpetuate, Republicans can and must do better.”

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When the Judicial Nominations Process Works

The filling of an 8th Circuit vacancy is proceeding apace due to commitment and cooperation among the White House and both of Iowa's senators.
PFAW

White House Speaks Out for Judicial Nominees

After committee approval of several judicial nominees, including for the DC Circuit, the Obama Administration urges Senate action on judges.
PFAW

PFAW Applauds Senate Judiciary Committee Approval of 13 Nominees, Including D.C. Circuit Court Nominee Caitlin Halligan

This morning the Senate Judiciary Committee voted to approve Caitlin Halligan to be a U.S. Circuit Judge for the D.C. Circuit and Patty Shwartz to be a U.S. Circuit Judge for the Third Circuit.  The Committee also approved nine District Court nominees and two nominees for the U.S. Court of International Trade.

Since 2003 Shwartz has served as a Magistrate Judge on the New Jersey U.S. District Court and includes among her supporters New Jersey governor Chris Christie.   Halligan, an accomplished appellate litigator who has practiced in front of the Supreme Court, is currently General Counsel of the Manhattan District Attorney’s Office and has strong support from the law enforcement community in New York and around the country.  She was first nominated for the seat on the D.C. Circuit in 2010 and has faced ongoing Republican obstruction despite the Court’s pressing vacancies.  The D.C. Circuit Court, the nation’s second most important court, currently has four vacancies (out of only eleven judgeships).  This has serious ramifications for the caseloads for each of the remaining active judges, which have continued to rise steeply in recent years.

“The need to fill vacancies has never been more pressing,” said Marge Baker, Executive Vice President of People For the American Way.  “We are heartened that two highly qualified women have been approved by the Committee for the Circuit Courts.  Halligan and Shwartz both deserve prompt votes.”

Of the thirteen judicial nominees voted on this morning, eight are women, six are minorities, and one is openly gay.

“These highly capable nominees come from diverse backgrounds,” Baker continued.  “It is encouraging to see a list of judicial nominees who look like America.”

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More Vacancies Mean More Work for DC Circuit Judges

The number of pending cases per active DC Circuit judge is far higher now than when Bush's nominees were confirmed.
PFAW

Hearing for a Diverse Group of Judicial Nominees

The nominees at today's Judiciary Committee hearing exemplify Obama's commitment to increasing personal and professional diversity in the federal judiciary.
PFAW

The D.C. Circuit Court's Fourth Vacancy

It is essential to fill the growing number of vacancies on the nation's second most important court.
PFAW

PFAW Urges Senate to Turn Attention to Long-Vacant Appeals Court Seats

WASHINGTON – People For the American Way today urged the Senate to turn its attention to clearing the backlog of federal circuit court nominees created by Republican obstruction in the last Congress.

Today the Senate Judiciary Committee easily reapproved three highly-regarded circuit court nominees who were blocked from Senate votes last year despite strong bipartisan support. These nominees – First Circuit nominee William Kayatta of Maine, Tenth Circuit nominee Robert Bacharach of Oklahoma, and Federal Circuit nominee Richard Taranto – have all waited at least eight months for Senate floor vote since their first committee approvals.

Judiciary Committee ranking member Charles Grassley used his prerogative to hold back for a week two additional circuit court nominees who had previously been approved by the committee. Patty Shwartz of New Jersey has been waiting nearly a year for a vote from the full Senate. Caitlin Halligan, who was first nominated by the president in 2010 and first approved by the committee in 2011, would fill one of three vacancies on the highly influential Court of Appeals for the D.C. Circuit. Both will get new committee votes next week.

As the five circuit court nominees once more make their way through the confirmation process, President Obama continues to make new nominations, naming four new circuit court nominees this during the past week, including two today.

Marge Baker, Executive Vice President of People For the American Way, released the following statement:

“The five circuit court nominees before the committee today were all approved by the committee last year and all have been waiting at least eight months for a simple up-or-down vote from the Senate. It’s bad enough that Senate Republicans forced all five to go through the confirmation process again this year rather than allowing them a timely confirmation vote. But it would add insult to injury if they are forced to languish on the Senate floor again. Surely, after all the time that these five highly qualified nominees have already spent waiting for a vote after committee approval, the Senate does not need more time to consider their qualifications.

“The Senate should quickly hold votes on these long-delayed nominees in order to fill the vacancies on these important courts. “

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Obama Nominates Iowa’s First Ever Female Circuit Court Judge

The White House announced two new federal appeals court nominees today, Jane Kelly of Iowa to serve on the Eighth Circuit Court of Appeals and Gregory Alan Phillips of Wyoming to serve on the Tenth Circuit Court of Appeals.

Kelly’s nomination is notable for a number of reasons. If confirmed, she will become only the second woman ever to serve on the Eight Circuit Court of Appeals, which oversees seven Midwestern states, and the first from Iowa. She would also help to bring a greater diversity of professional backgrounds to the federal bench, coming to the position after a career as a highly-regarded federal public defender.

Kelly’s nomination underscores the Obama administration’s remarkable success in bringing a diversity of voices to the federal bench. A record 41 percent of President Obama’s confirmed nominees have been women and 36 percent have been people of color. In addition, Obama has nominated more openly gay federal judges than all previous presidents combined. Despite the Senate GOP’s routine stalling of the president’s nominees, he has succeeded in bringing unprecedented gender and racial diversity to the federal bench.

Both Kelly and Phillips have been nominated to vacancies that have not yet opened up (Kelly’s vacancy opens tomorrow and Phillips’ in April). If the Senate confirms them quickly it will avoid adding two more vacancies to an already over-burdened federal court system. Promptly filling the 10th Circuit vacancy  is especially critical since the 12-judge Tenth Circuit  is on track to have vacancies in one third of its seats. A nominee for one of the three current vacancies on the circuit, Robert Bacharach of Oklahoma, has been waiting over seven months for a Senate vote, despite strong support from his two home-state Republican senators.

 

PFAW

Obama Highlights Judges in Response to Filibuster Deal

The president again signals the priority he places on judicial nominations during his second term.
PFAW

PFAW: Filibuster Reform Provides Only Modest Relief for Ending ‘Unprecedented GOP Obstruction’

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.”

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Sen. Leahy Talks About Judges at Georgetown Law

The Judiciary Committee chairman condemns obstruction of qualified judicial nominees.
PFAW

Swift Renominations Show Obama's Commitment to Judicial Nominations

As soon as the 103rd Congress began, Obama renominated every judicial nominee left unconfirmed and called for their timely confirmation.
PFAW

Senators Speak Out for Judicial Confirmations

Sens. Whitehouse, Cardin, and (Tom) Udall discuss how Republican obstruction of judicial nominations is damaging the nation's system of justice.
PFAW

Empty Courtrooms in Obama’s First Term: A Slow Start on Judicial Nominations Magnified Many Times Over By Republican Obstruction

TO: Interested Parties
FROM: Marge Baker, Executive Vice President, People For the American Way
DATE: January 2, 2013

SUBJECT: Empty Courtrooms in Obama’s First Term: A Slow Start on Judicial Nominations Magnified Many Times Over By Republican Obstruction

As the U.S. Senate departs for the year, it leaves behind unfinished business: four long-pending circuit court nominations and 70 unfilled vacancies in the federal courts, with another 20 upcoming vacancies already announced.

President Obama ends his first term with more federal judicial vacancies than when he began. There are a number of reasons for this failure to efficiently fill seats in the federal courts, including the president’s slow start in making nominations in the early years of his first term. But that slow start was magnified many times over by Senate Republicans’ extreme intransigence, leading to a historic vacancy crisis in our federal courts that has persisted long after the White House picked up its pace on nominations. In an effort to keep the courts dominated by George W. Bush-nominated conservatives and to stall the president’s agenda wherever possible, Senate Republicans have stymied the nomination and confirmation of federal judicial nominees at every step in the process and at an unprecedented scale.

The result was that almost every one of President Obama’s first-term judicial nominees was delayed in the Judiciary Committee, and once approved by the Committee, waited an average of three times as long for a confirmation vote from the full Senate as did President Bush’s first-term nominees.

That persistent obstruction led to record vacancy levels in the federal courts. The 55 vacancies at the start of Obama’s presidency jumped to 90 over the course of his first year in office, and they have rarely gone below that number since. Notably, the president also ends his first term without confirming a single judge to the enormously influential Court of Appeals for the D.C. Circuit, four of whose 11 seats are now vacant.

There were, of course, bright spots in the past four years of judicial nominations. Two extraordinarily qualified women earned seats on the Supreme Court. Sonia Sotomayor became the nation’s first Latina Supreme Court justice, and Elena Kagan brought the total number of women on the Court to three for the first time in history.

President Obama also brought unprecedented diversity to the lower federal courts. 41 percent of President Obama’s confirmed judicial nominees have been women – the highest percentage in history – and he has now put  more women on the federal bench in four years than President Bush did in eight. President Obama has also nominated a higher percentage of African Americans, Hispanics, and Asian Americans than any previous president, ensuring that our federal courts are beginning to reflect the country they serve. In addition, President Obama has put more openly LGBT people on the federal bench than all of his predecessors combined.

But this effort to bring talented, fair-minded Americans with a diversity of backgrounds to the federal bench has been hampered by a consistent and needless slow-walking of nominees in the U.S. Senate. This memo outlines the obstruction tactics that have resulted in a persistently high vacancy rate in the federal courts and needless delays for Americans seeking justice.

Abuse of the Filibuster and Filibuster Equivalents

The most well-known tool of Senate obstruction – the filibuster – has been abused to a new level by the Senate GOP in the last two Congresses. In 2005, many Senate Republicans loudly proclaimed that it was unconstitutional – not just a bad idea, but actually a violation of the United States Constitution – for Democratic senators to filibuster a small number of George W. Bush’s circuit court nominees on the well-documented grounds that they were dangerously out of the mainstream. A few others joined the bipartisan “Gang of 14,” agreeing that filibusters of judicial nominations were only appropriate under undefined “extraordinary circumstances.”  After January 20, 2009, they threw their claimed principles to the wind and made clear just what constitutes “extraordinary circumstances” in their book: being nominated by a Democratic president.

The Senate GOP  expanded  the use of filibusters to stall the confirmation of consensus circuit court nominees. Of the ten circuit court nominations on which Democrats have had to file cloture in order to break GOP obstruction, half had cleared the Judiciary Committee with overwhelming bipartisan support, and half went on to be confirmed with similarly overwhelming bipartisan support. In one typical example, Republicans filibustered the nomination of Adalberto Jordan of Florida to sit on the Eleventh Circuit Court of Appeals, blocking a vote for four months after he was approved unanimously by the Judiciary Committee. (In contrast, the average confirmed circuit court nominee during President Bush's first term waited only a month for a floor vote.) Jordan, who had the strong support of Florida Republican Sen. Marco Rubio, would become the first Cuban American to sit on the Eleventh Circuit. Once the filibuster was broken 89-5, he was confirmed in a 94-5 vote. No apologies or explanations for the filibuster were ever given.

Notably, the Senate GOP has been willing to filibuster even noncontroversial district court nominees, who historically have faced little partisan resistance on their way to trial court positions. The majority party had to move to end a filibuster of one district court nominee during the Clinton administration and one during the George W. Bush administration. In contrast, in just four years of President Obama’s administration, the majority has been forced to file twenty cloture petitions to end filibusters of district court nominees, almost all of whom were eventually confirmed unanimously or near-unanimously.

And this is just obstruction that ended in cloture votes. Because scheduling a vote in the Senate requires unanimous consent, Senate Republicans have been able to quietly delay votes on judicial nominees for months without stating a reason. These quiet delays – which effectively amount to filibusters but are not formally recorded as such – have led to a tremendous and damaging slowing of the confirmation process. President Obama’s circuit court nominees have, on average, been forced to wait 135 days between committee approval and a vote from the full Senate. In contrast, President Bush’s first-term circuit court nominees waited an average of just 37 days for a Senate vote. Similarly, President Obama’s district court nominees have waited an average of 103 days for a Senate vote, in contrast to just 35 days for Bush’s first-term nominees.

Three of the four currently pending circuit court nominees have been held up by this type of silent filibuster: the GOP has simply refused to allow confirmation votes for Patty Shwartz (Third Circuit, waiting for a vote since March), Richard Taranto (Federal Circuit, also waiting since March), and William Kayatta (First Circuit, waiting since April).  The fourth – Robert Bacharach – has been waiting “only” since June. Republicans defeated a cloture petition to end the filibuster of Bacharach’s nomination, even after his home-state Republican senator Tom Coburn said that such a move would be “stupid.” Not one of these nominees is opposed by their home state senators.  In fact, two – Maine’s Kayatta and Oklahoma’s Bacharach – come from states where those supportive senators are both Republicans.  All four nominees have received the highest possible evaluation of their qualifications by the ABA.  They simply are not controversial.  Their “problem” is that they are mainstream jurists nominated by President Obama.

Creative Obstruction

Filibusters and obstruction tactics on the Senate floor are the most visible types of Senate gridlock, but the GOP’s obstruction of President Obama’s first term judicial nominees went much deeper.

It started with the very process of finding potential nominees. President Obama has consulted extensively with home state senators to find qualified federal judicial nominees. But despite these efforts, a number of nominees are stuck in the Judiciary Committee awaiting hearings because the nominee’s home-state senators have refused to give their permission for the nomination to go forward. In committee jargon, these senators have not signed the “blue slip” signaling a formal go-ahead. 

For instance, the people of Georgia can thank their own senators for two long-open district court vacancies. In January 2011, President Obama nominated Linda T. Walker and V. Natasha Perdew Silas to fill two officially-designated emergency vacancies in Georgia’s Northern District. Sens. Johnny Isakson and Saxby Chambliss opposed Silas but never said why. Nevertheless, that was enough to keep her from even getting a hearing before the Judiciary Committee. And since Silas’s nomination was linked to Walker’s, the Georgia senators’ machinations wrecked both nominations. Similarly, without giving a reason, Isakson and Chambliss have not submitted their blue slips for the undoubtedly qualified Jill Pryor for a Georgia-designated Eleventh Circuit seat, leaving her nomination in limbo for 10 months and counting.


In 2011, freshman Wisconsin senator Ron Johnson  refused to submit his blue slips when President Obama renominated a circuit and district court nominee who had not gotten votes in 2010. These were nominees who had been recommended  by a bipartisan commission, and no other newly elected senator that year blocked similar renominations in their state. As with Georgia’s district court nominations, these were returned to the White House, and the seats remain vacant and without nominees.

This summer Louisiana Sen. David Vitter blocked the committee from considering the nomination of Shelly Dick to a district court seat she’d been nominated to back in April, unilaterally deciding that the Judiciary Committee should not consider her nomination because it was too close to the presidential election. After Obama’s victory, Vitter relented, presenting her to the committee with his full support last month (but too late to be confirmed in 2012, as she should have been). In Nevada, Sen. Dean Heller has blocked a committee hearing on Elissa Cadish for reasons widely condemned as ludicrous: before the Supreme Court’s 2008 gun control decision in Heller, she correctly described to a newspaper what was then the state of Second Amendment law.

Unfortunately, even once nominees had a chance to testify before the Judiciary Committee, they were not free from stalling tactics. Ranking Member Chuck Grassley, like Ranking Member Jeff Sessions before him, took advantage of a rule allowing the minority party to postpone committee votes on nominees to stall all but five of the nominees the committee considered – a full 97% of the nominees that have come before the committee for a vote. These nominations were delayed anywhere between one and six weeks before heading to further delays on the Senate floor.

Empty Excuses

In attempting to defend the indefensible, Senate Republicans have been flaunting faulty statistics and nonsensical comparisons. Criticized last month for his consistent use of stalling tactics, Sen. Grassley claimed that the Senate had confirmed more nominees in President Obama's first term than in a “similar period” in Bush’s presidency. The “similar period” he referred to was in fact a “dissimilar period” – he cherry-picked numbers in order to compare President Obama’s first term with George W. Bush’s second term, in which the Senate confirmed fewer nominees simply because there were fewer vacancies to fill. And in any event, Bush’s second-term confirmed nominees, just like his first, got a floor vote on average far more quickly than Obama’s.

A Second-Term Focus on the Courts

One of the Senate’s key duties is to ensure the health of the nation’s judicial branch. But the Republican minority has increasingly ignored its duty to “advise and consent,” instead using judicial nominees as pawns in politically-motivated gridlock. This has resulted in a vacancy crisis that has left federal courts across the country understaffed and unable to provide swift access to individuals and businesses seeking their day in court. It has also meant that the right-wing ideology that President Bush required in his judicial nominees continues to dominate the federal courts.

Elections have consequences. The American people once again decisively chose President Obama as the person we want to be choosing our federal judges. He has made an effort to name fair jurists with broad bases of support and diverse backgrounds. Senate Republicans have a responsibility to take their “advise and consent” duties seriously, considering nominees on their merits and moving the confirmation process as efficiently as possible in order to ensure a court system that works for the Americans who depend on it.

President Obama has signaled that he will make judicial nominations a priority in his second term. The Senate must do better in the next four years to ensure that Americans have a federal court system that works.
 

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