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.
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.
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.
The New York Times’ Linda Greenhouse has a great blog post up on the National Rifle Association’s little-known role in influencing Senate votes on federal judicial nominees. Greenhouse focuses on the NRA’s effort to scare Republican Senators away from voting for the Supreme Court nominations of Sonia Sotomayor and Elena Kagan – neither of whom had any actual Second Amendment record – and its successful effort to frustrate the DC Circuit nomination of Caitlin Halligan, who had once represented the state of New York in a gun control case.
These are the most prominent examples of the NRA’s efforts to keep qualified judicial nominees off the federal bench without reason. But there are plenty more examples out there. One of the most appalling is that of Elissa Cadish, who President Obama nominated to fill a district court seat in Nevada back in February. The NRA immediately got to work to stop Cadish’s nomination. Why? One month before the Supreme Court’s Heller decision – in which it overturned decades of case law to state that the Second Amendment guarantees an individual’s right to own firearms – Cadish correctly answered a questionnaire about the current state of Second Amendment law. At the time, Cadish correctly stated that the law that she would follow as a district court judge did not include the individual right to bear firearms. After Heller, she clarified that she would of course follow current law, which now did include this right.
This was a sign of proper judicial restraint – district court judges are in the business of applying the law as interpreted by higher courts – but to the NRA it was an excuse to bring down a judicial nominee. The gun group strong-armed Nevada Sen. Dean Heller into opposing the nomination and that was that. Heller refused to give his permission for the Senate Judiciary Committee to even hold a hearing on Cadish (permission is traditionally required from both home-state senators), and her nomination foundered.
The NRA didn’t get involved with these judicial nominations because it had substantive reasons to oppose the nominees. It got involved because it is, in effect, a codependent wing of the Republican party. Greenhouse points out that it was Senate Republican Leader Mitch McConnell who reached out to the NRA about opposing Sotomayor, rather than the other way around. Senate Republicans want to stop President Obama from filling seats on the federal courts. They then used the NRA as a useful bludgeon to keep in line senators who might consider being reasonable. The NRA and the Republican leadership get what they want from this relationship. The rest of us get a gridlocked Senate, a vacancy crisis in the federal courts and nation awash in firearms.
WASHINGTON – The Senate is leaving town for the Christmas holiday without holding confirmation votes on four federal appeals court nominees who have been waiting six to nine months for approval from the full Senate. These nominees – Third Circuit nominee Patty Shwartz of New Jersey, First Circuit nominee William Kayatta of Maine, Tenth Circuit nominee Robert Bacharach of Oklahoma and Federal Circuit nominee Richard Taranto – all have the backing of their home-state senators, Democratic and Republican. Senate Republicans have blocked Shwartz’s nomination for over nine months, Kayatta’s and Taranto’s for eight, and Bacharach’s for six.
Senate Republicans are, however, finally allowing votes on three long-delayed district court nominees, Matthew Brann and Malachy Mannion for the Middle District of Pennsylvania and Jon Tigar for the Northern District of California. All three will fill officially designated emergency vacancies. Brann will take over at a courthouse in Williamsport, Pennsylvania, which has not had a serving federal judge since July 2011. Yet all three have been delayed on the Senate floor for over four months.
“It’s bad enough that entirely uncontroversial trial court nominees like Brann, Mannion and Tigar are forced to wait months before the Senate will allow them to fill emergency vacancies,” said Marge Baker, Executive Vice President of People For the American Way. “Yet Senate Republicans have the audacity as they leave town to claim credit for finally doing something they should have done back in September. Meanwhile, key circuit court vacancies have been left unfilled, some for nearly three-quarters of a year, despite the absence of any substantive concerns about the nominees’ qualifications. The Senate’s role is to advise and consent, not to obstruct and delay. Senate Republicans should take this duty seriously and allow votes on all pending nominees before the end of the year.”
WASHINGTON, DC – Today, six months after the last Senate confirmation vote on a federal circuit court nominee, People For the American Way urged Senate Republicans to agree to votes on all remaining federal judicial nominees.
“It is highly unusual to go six months without a vote on a single federal circuit court nominee, outside of a presidential transition,” said Marge Baker of People For the American Way. “And it’s even more unusual for these kinds of delays to be thrown at unquestionably qualified and uncontroversial nominees.”
There are currently 13 district court nominees and four circuit court nominees waiting for Senate votes. Circuit courts have a uniquely important role in our system of justice, and the four circuit court nominees have been blocked longer than any of the others. Tenth Circuit nominee Robert Bacharach of Oklahoma has been waiting six months for a confirmation vote; First Circuit nominee William Kayatta of Maine has been waiting roughly eight months, as has Federal Circuit nominee Richard Taranto. Third Circuit nominee Patty Shwartz of New Jersey has been waiting a full nine months for a simple up-or-down vote from the Senate. All have extraordinary qualifications and the support of their home-state senators, Democratic and Republican. In fact, if they are ever allowed a floor vote, most of the circuit court nominees can count on a unanimous or near-unanimous confirmation. Their only “flaw” is that Republicans oppose the president who nominated them.
“Under pressure, Senate Republicans have finally allowed some progress in recent days in the confirmation of a handful of consensus district court nominees who should have been confirmed months before the election,” continued Baker. “But there is no reason why every one of the nominees currently on the Senate calendar shouldn’t have an up-or-down vote before the end of the term. More than ten percent of all circuit court judgeships are vacant or soon to become vacant. Given this vacancy crisis, and with nominees like these four, it is inexcusable for Senate Republicans to allow half a year to go by without lifting their blanket blockade on all circuit court judges.”
Washington, DC – This afternoon, Senate Majority Leader Harry Reid overcame Republican roadblocks to schedule confirmation votes on two highly qualified district court nominees from Connecticut and Maryland. Michael P. Shea of Connecticut has been a partner of a law firm with extensive experience in a range of civil and criminal cases, and Paul William Grimm of Maryland has served as the Chief United States Magistrate Judge for Maryland for six years. Both nominees have outstanding credentials, were approved by the Judiciary Committee with overwhelming bipartisan support, and both have the support of their home state senators. Nevertheless, for no reason other than a desire to obstruct Senate business, Republicans have blocked efforts to allow confirmation votes. Shea has been waiting seven months for a vote from the full Senate and Grimm has been waiting for five months. These will be the first votes on judicial nominees since September.
“We are pleased that these two exceedingly qualified nominees will finally receive their confirmation votes,” said Marge Baker of People For the American Way. “It’s shameful that the Republican minority has forced them to wait this long for simple up-or-down votes. These delays directly impact Americans seeking their day in court. In Connecticut, the judicial vacancy crisis is so severe that the Chief District Judge had to bring in out-of-state judges to help relieve the caseload. Senate Republicans must now allow votes on the remaining 17 nominees who were long ago approved by the Judiciary Committee and have needlessly been forced into limbo month after month after month.”
Washington, DC – Sen. Chuck Grassley of Iowa today ignored the calls of national and home-state groups and delayed Judiciary Committee votes on five federal judicial nominees. Sen. Grassley, the committee’s ranking member, has routinely held back committee votes on judicial nominations for one, two, three, or even six weeks, usually without providing a reason. Ninety-seven percent of President Obama’s judicial nominees who have had committee votes scheduled have met with these delays, before confronting even greater obstruction on the Senate floor.
Yesterday, 16 Iowa and national groups sent Sen. Grassley a letter urging him to end these routine delays of judicial nominees, which have helped create a record vacancy crisis in the federal courts. In response, Grassley flaunted misleading statistics and failed to produce a reason why he has delayed nominees far more frequently than his predecessors.
Ignoring the groups' call, at a hearing today, Grassley postponed committee votes on four federal district court nominees and one nominee for the Court of International Trade. Three of the nominees would fill emergency vacancies. It has been more than two months since the committee heard testimony from the nominees and had the chance to ask follow-up questions.
“Sen. Grassley has chosen to put petty partisan politics over the wellbeing of our federal courts and the wishes of his constituents,” said Marge Baker, Executive Vice President of People For the American Way. “Because they take place in committee, Grassley’s delaying tactics usually go under the radar, but that does not make them any less harmful. Grassley and his party are delaying these nominees just for the sake of delay. At a time when federal courts are struggling to meet the needs of Americans, that is simply irresponsible.”
Washington, DC – At a time when there is a record vacancy crisis in the federal courts, Colorado senators Mark Udall and Michael Bennet have done something unusual: they have expedited the judicial nomination process so that a seat on the U.S. District Court for the District of Colorado will transfer hands without a long period of vacancy. If the Senate confirms him promptly, Raymond P. Moore will take the place of Judge Wiley Daniel soon after his seat becomes vacant in January.
People For the American Way praised Sens. Udall and Bennet for their attention to helping the president nominate a qualified jurist for the federal district court in Colorado. “Federal courts across the country are struggling to meet the needs of the American people. In many cases, it is because Senate Republicans are obstructing President Obama’s nominees. But too often, it is simply because senators are dragging their feet in recommending nominees to the president,” said Marge Baker, Executive Vice President of People For the American Way. “Senators Udall and Bennet have shown how the process can be swift and efficient.”
Federal judges often announce planned departures from the bench many months in advance so that the process for nominating and confirming a replacement can begin early, thus minimizing the amount of time that a seat is vacant. Then, for district courts in particular, the White House seeks recommendations of potential nominees from the state’s senators. In too many states, delay on the part of senators means a significantly delayed nomination, leaving courtroom vacancies unfilled. As a result, most future vacancies become current vacancies with no replacement nominated.
That is not what happened in Colorado. Last winter, district court Judge Wiley Daniel announced that he would be taking senior status beginning in January 2013. Sens. Udall and Bennet promptly put together an 11-member bipartisan advisory commission to help identify highly qualified candidates for the vacancy, which accepted applications during the spring and submitted its recommendations to the senators. The senators then forwarded the finalists to the White House, which conducted its own review, leading to the president’s nomination yesterday of Raymond P. Moore, a longtime federal public defender.
Yesterday, the wheels have been set in motion for the Senate to begin its consideration of the nomination, before the vacancy even opens up.
“The process that Senators Udall and Bennet set in motion to nominate Moore should not be unusual,” added Baker. “Instead, it should be a model for senators across the country. It is a testament to the commitment of Sens. Bennet and Udall to making sure that no Coloradan is denied their day in court, one that I hope many of their colleagues will emulate.”
Washington, DC – People For the American Way commended President Obama for putting forward seven nominees for seats on federal district courts today, and urged the Senate to promptly consider the 19 nominees currently awaiting floor votes.
“By nominating this slate of highly qualified nominees just one week after his reelection, the president has signaled that the federal courts will be a priority in his second term,” said Marge Baker, Executive Vice President of People For the American Way. “Now it’s the Senate’s turn to show that they’re serious about ending the vacancy crisis in the courts. They can start by voting on the 19 judicial nominees awaiting votes in the lame duck session.”
The Senate could easily confirm all 19 nominees awaiting Senate votes before the end of the lame duck session. In December 2010, the Senate confirmed 19 judges in less than a week. In November 2002, the Senate confirmed 20 judges in less than a week, including 18 on a single day.
During President Obama’s first term, Senate Republicans abused the filibuster to stall votes on even uncontroversial judicial nominees, contributing to a record vacancy crisis in the federal courts. While President Obama has nominated federal judges at a similar pace as President George W. Bush did in his first term, only 78 percent of his nominees have been confirmed, compared to 89 percent of Bush’s nominees. On average, President Obama’s judicial nominees have been forced to wait three times as long between committee approval and a Senate vote as did nominees in President Bush’s first term.