President Obama yesterday nominated three highly qualified candidates to federal district court judgeships in Illinois. The nominations of Colin Stirling Bruce, Sara Lee Ellis and Andrea R. Wood underscore the president’s commitment to bringing qualified, diverse candidates to the federal bench. Two of the three nominees, Ellis and Wood, are African-American women. Wood brings unique professional diversity to the bench: she currently works for the enforcement division of the Securities and Exchange Commission, which helps keep financial companies accountable to voters and consumers.
Yesterday, the Senate unanimously confirmed Iowa’s Jane Kelly to the Eighth Circuit Court of Appeals. Kelly, who currently serves as a federal public defender, becomes “only the second woman, and the first public defender, to serve in the history of the court that was established in 1891,” according to the Iowa City Gazette.
Kelly also makes history by having the quickest confirmation process of any of President Obama’s appeals court nominees so far, according to the Gazette. Kelly waited just 33 days for a confirmation vote, compared to the average 153 day wait for President Obama’s circuit court nominees (as of two weeks ago). Kelly’s quick confirmation, however, would not have been at all noteworthy at this point in George W. Bush administration, when appellate nominees waited an average of just 37 days between committee approval and Senate confirmation.
Kelly’s speedy confirmation may have something to do with the senators supporting her. Iowa’s Chuck Grassley, who as ranking member of the Senate Judiciary Committee has been instrumental in obstructing President Obama’s judicial nominees, seemed to put aside his obstruction habits for a nominee from his own state.
Iowa Republicans are determined to remove the nine state supreme court justices who ruled unanimously in 2009 to allow same-sex marriage in the state, and they'll try just about anything. In 2010, anti-gay groups funded a successful campaign to oust three justices in retention elections. Then Iowa anti-gay leader Bob Vander Plaats called for the remaining justices to resign. When that didn't work, state Republicans then tried to impeach them. Last year, an effort to remove a fourth justice failed at the ballot box. So now Iowa Republicans are trying a different strategy, proposing to dramatically lower the salaries of the remaining judges who were involved in the marriage equality decision. The Iowa City Gazette reports:
A handful of House conservatives want to reduce the pay of Iowa Supreme Court justices involved in a 2009 decision striking down a ban on same-sex marriages as part of an effort to maintain the balance of power in state government.
“It’s our responsibility to maintain the balance of power” between the three co-equal branches of government, Rep. Tom Shaw, R-Laurens, said Tuesday.
The justices “trashed the separation of powers” with their unanimous Varnum v. Brien decision and implementation of same-sex marriage without a change in state law banning any marriages expect between one man and one woman, added Rep. Dwayne Alons, R-Hull.
Their amendment to House File 120, the judicial branch budget bill, would lower the salaries of the four justices on the seven-member court who were part of the unanimous Varnum v. Brein decision to $25,000 – the same as a state legislator.
It’s not meant to be punitive, Alons and Shaw said Tuesday.
“We’re just holding them responsible for their decision, for going beyond their bounds,” Shaw said.
“It’s not the merits of what they said in that decision,” added Alons. He’s trying to stop “an encroaching wave” of judicial activity including decisions on nude dancing and landowner liability – decisions the Legislature also is trying to correct through legislation this session.
The chairman of the state Senate Judiciary Committee tells Gazette “that a plan to pay justices differently based on their role in one case would be unlikely to withstand a court challenge.”
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.
In response to the reported withdrawal of DC Circuit Court of Appeals Nominee Caitlin Halligan, People For the American Way issued the following statement.
“Caitlin Halligan’s decision to withdraw her nomination is an indictment of the continued intransigence of Senate Republicans,” said Marge Baker, Executive Vice President at People For the American Way. “There’s no question that Halligan was totally qualified for the position. Anyone who wants to understand how Washington is broken can look at the filibuster led by Senators Chuck Grassley and Mitch McConnell. Not a single Senator raised concerns about Halligan’s qualifications or her character, yet Republicans wouldn’t even allow her an up-or-down vote. This is partisanship run amok.”
Halligan, who was first nominated to the DC Circuit in May of 2010, was repeatedly blocked by Republicans—including Senators Collins, McCain and Graham, members of the so-called Gang of 14 who previously spoke out against filibustering in anything but “extraordinary circumstances.”
“There’s an obvious reason why Republicans have been so committed to blocking President Obama’s nominees to this court,” said Baker. “Republican Presidents have been hugely successful in packing the DC Circuit with extraordinarily conservative judges, and they don’t want any more jurists on the bench to dilute that ideological power. The DC Circuit has dealt significant blows to working people, environmentalists, public health activists and ordinary investors. Republicans pushing a reactionary ideology are working overtime to protect the power of the DC circuit to advance their political agenda. Senators should put the best interests of the country above partisanship and bring this obstruction to a halt.”
People For the American Way recently released a report, America’s Progress At Risk: Restoring the Balance to the DC Circuit Court of Appeals, laying out the impact of the right-wing majority on the nation’s second highest court.
Chris Kang, Senior Counsel to the President, notes on the White House blog that today markes the one-year anniversary of the day Third Circuit nominee Patty Shwartz was first approved by the Senate Judiciary Committee. That means that Shwartz, an experienced and respected attorney, has been waiting a full year simply for an up-or-down vote from the Senate. The ABA panel that evaluates the qualifications of judicial nominees unanimous gave her its highest possible rating. Not surprisingly for someone of her caliber, she has the strong support of Democrats and Republicans alike, including New Jersey Gov. Chris Christie.
Kang writes that Shwartz’s experience is sadly not unusual in a Senate that’s been hamstrung by an obstructionist Republican minority:
Unfortunately, the delay for Judge Shwartz is not unique. Last week, my colleague wrote about Judge Robert Bacharach, who was recommended to the White House by one of his Republican home state Senators, but waited 263 days for a floor vote before being confirmed 93-0. And on Monday – after 347 days of delay -- the Senate will consider the nomination of Richard Taranto to serve on the U.S. Court of Appeals for the Federal Circuit.
Overall, President Obama’s judicial nominees wait an average of 117 days on the Senate floor for a vote -- more than three times longer than President Bush’s judicial nominees, who waited an average of only 34 days. The Senate must promote the administration of justice by returning to the prompt consideration of judicial nominations. It should consider Judge Shwartz’s nomination without further delay, as well as the fifteen district court nominees awaiting votes. Yesterday, the Senate Judiciary Committee unanimously approved five district court nominees. There is no reason they – and the others approved before them – should not be confirmed within 34 days.
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.
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.
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.”
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.”
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.”