judicial nominations

Demise of Another GOP Talking Point on Judicial Nominations

The GOP claim that confirmation times for Obama's judicial nominees should be compared to Bush's second term falls apart.
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Judicial Obstruction in Graphic Form

Even for judicial nominees with no opposition, Republican opposition is setting records.
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More Court Vacancies, More GOP Obstruction

Republicans are blocking judicial nominees in Illinois and California, even though new vacancies in those states were announced just this morning.
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Sen. Confirmed 10 Judges One Day After Committee Vote in Sept 2008

In the last presidential election year, the Senate confirmed 10 judges in September, just a day after committee approval. Why not this year?
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Leahy Urges Confirmation Votes for Judges

Republicans should allow the Senate to vote on all of the 17 pending district court nominations.
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A Diversity Milestone for Federal Judges

President Obama had as many women judges confirmed as Bush did in 8 years, but Republicans are preventing votes that would further diversify our courts.
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PFAW Memo: Sen. Toomey Can Help Get Pennsylvania’s Judicial Nominees Confirmed by Encouraging his Republican Colleagues To Cooperate

To: Interested Parties
From: Jodi Hirsh, People For the American Way of Pennsylvania
Re:
Senator Toomey Can Help Get Pennsylvania’s Judicial Nominees Confirmed by Encouraging his Republican Colleagues To Cooperate

Last month, the Senate Judiciary Committee approved two nominees to fill two long-vacant seats in Pennsylvania’s federal courts. Each has broad bipartisan support and is strongly supported by both Sens. Casey and Toomey. Yet over four weeks later, neither has received a vote from the full Senate. Sen. Pat Toomey has recently urged their prompt confirmation, correctly stating that “The one thing standing between the confirmation and these two gentlemen putting on the robes and serving, is a vote on the Senate floor.” That’s true. And he says he will push for a floor vote in September. That’s good.

But in addition to making statements he needs to press members of his own party for action.

In fact it is Senate Republicans, including Sen. Toomey, who have systematically slow-walked nearly every judicial nomination that President Obama has made. Confirmed district court nominees under President Bush at this point in his presidency waited on average just 33 days from committee approval to a vote from the full Senate. In contrast, district court nominees under President Obama have waited an average of 96 days, or three times as long. This is not because Senate Majority Leader Harry Reid refuses to schedule votes. It is because Reid can’t schedule a vote without the minority party’s consent, and that consent has routinely been denied even for nominees with strong bipartisan support like the two pending in Pennsylvania, just one of the many stalling tactics they have used to keep President Obama’s nominees off the courts

Pennsylvania nominees Matthew Brann of Canton and Malachy Mannion of Scott Township are not alone in waiting for Senate votes. There are now 22 judicial nominees who have been approved by the Judiciary Committee and who are waiting for a simple up-or-down vote from the Senate. Nineteen were approved by the Judiciary Committee with strong bipartisan support. Seven of these have been waiting since April or earlier for a vote. A third of these are women and people of color, nominees who would help diversify the federal bench. And most have been waiting for a Senate vote far longer than Mannion and Brann.

After the Judiciary Committee vets a nominee, especially a consensus nominee like most of the ones now pending, the Senate should quickly cast a yes-or-no vote. There is no legitimate reason for delay. In past administrations, we have seen multiple confirmation votes per week. But since May, Senate Republicans have allowed only one a week. There is no reason for this but partisan obstruction, pure and simple. Rather than being toward the bottom of a list of 22 nominees, Brann and Mannion should be at the top of much smaller list composed only of the few nominees approved by the committee in late July and early August, with the full expectation of confirmation on the day the Senate returns from recess.

For Mannion and Brann to have a realistic chance of being confirmed this fall, Senator Toomey will need to talk to his fellow Republicans – especially Minority Leader Mitch McConnell – and demand votes not only for Pennsylvania’s nominees, but for all of the many district court nominees ahead of them in line. Until those other nominees get votes, two courtrooms in Pennsylvania’s Middle District will remain empty.

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Not Business as Usual: Senate Confirms One Long-Delayed District Court Nominee, Leaves Another 18 Hanging

Washington, DC – The Senate today confirmed Gershwin Drain, a nominee to fill a long-standing emergency vacancy in the Eastern District of Michigan. The 55 to 41 vote came on the heels of the Senate GOP’s unprecedented refusal to confirm even consensus appeals court nominees until after the presidential election. While Senate Republicans claim to be cooperating on filling district court vacancies, they are doing so grudgingly and inefficiently, allowing no more than one vote a week. As a result, the backlog of pending nominees has gotten larger and larger. Drain, nominated to fill an emergency vacancy that has been open for three and a half years, was forced to wait over four months after committee approval for his long overdue vote on the Senate floor.

There are 74 district judgeships currently or about to become vacant and 18 qualified nominees waiting for votes on the Senate floor. Ten of these would fill judicial emergencies. Most have been waiting for a vote since June or earlier; four of them since April. As the Senate prepares to leave for its August recess, there is no reason not to vote on all these long-pending nominees.

“There is no way that Gershwin Drain should have had to wait four months simply for an up-or-down vote from the Senate,” said Paul Gordon of People For the American Way. “Senate Republicans have already announced they’ll filibuster all remaining appeals court nominees, even those without opposition, even those strongly supported by members of their own party. Now, they’re making the confirmation process for the 18 remaining district court nominees painfully slow. There are more than 60 vacancies in district courts around the country that need to be filled immediately, with another dozen about to open up. The Senate GOP should start doing its job and let the President and Senate fill them in a timely manner.”

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Senate Republicans Block Appeals Court Nominee They Support, Setting Obstruction Record

Washington, DC – The Senate GOP set an obstruction record today, for the first time in history successfully filibustering a federal appeals court nominee who had come out of the Judiciary Committee with bipartisan support. In a 56 to 34 vote, a partisan minority prevented the Senate majority from ending the filibuster of the nomination of Oklahoma’s Robert Bacharach to become a judge on the Tenth Circuit Court of Appeals. No senator has actually spoken against Bacharach’s nomination, and he has received the strong support of both his home-state senators, Republicans Tom Coburn and James Inhofe. In an interview in June, Coburn called plans to block Bacharach’s nomination “stupid.” But even Coburn and Inhofe’s support evaporated when McConnell gave the command to filibuster: both Oklahoma senators voted "present," which in the case of a filibuster is the same as a "no" vote.

“If you need any further proof of the Senate GOP’s blind dedication to obstruction, this is it,” said Paul Gordon of People For the American Way. “Robert Bacharach should have been a shoe-in for a federal judgeship. His superior qualifications aren’t in dispute. His home-state senators, both conservative Republicans, fully support his nomination. Republicans aren’t even bothering to pretend he is controversial. For the first time in American history, we see a successful filibuster of a circuit court nominee who was approved by committee with bipartisan support – all because Sen. McConnell and his party are more interested in playing politics than in doing their jobs. So Americans in six states remain stuck with a circuit court without enough judges to deliver justice efficiently.

“With nearly 80 current vacancies in the federal courts, the Senate GOP should be doing everything in its power to help clear the nominations backlog, rather than making flimsy excuses for further obstruction. This absurd gamesmanship is not what Americans are paying our Senate to do.”

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Last week, People For the American Way circulated this fact sheet on Bacharach’s nomination:

There has never been a successful filibuster of a circuit court nominee who was approved in committee with bipartisan support. A failed cloture vote on Tenth Circuit nominee Robert Bacharach would represent a massive escalation in obstruction.

Robert Bacharach should be a shoe-in

  • The ABA panel that evaluates judicial nominees unanimously found Bacharach well qualified, its highest possible evaluation. He has been a magistrate judge in the Western District of Oklahoma for over a decade.
  • He was approved by the Judiciary Committee with near-unanimous bipartisan support (the one “no” vote was from Sen. Mike Lee, who is voting against all President Obama’s judicial nominees to protest an unrelated issue).
  • He has the support of President Obama and both of Oklahoma’s Republican senators.
  • As Sen. Inhofe said, “it is kind of rare that the Obama White House and I agree on anything.”
  • Sen. Coburn said in June that it would be “stupid” for his party to block a vote on Bacharach.

The “Thurmond Rule” is no excuse for blocking Bacharach

  •  In the past 5 presidential election years, Senate Democrats have never denied an up-or-down vote to any circuit court nominee of a Republican president who received bipartisan support in the Judiciary Committee.
  • In the past 5 presidential election years, only 4 circuit nominees reported with bipartisan support have been denied an up-or-down vote on the Senate Floor, and all 4 were nominated by President Clinton.

This is part of the GOP’s ongoing campaign of obstruction against consensus nominees

  •  Of the 5 circuit court nominees that have been confirmed this year, the Majority Leader had to file cloture on 3 of those nominees in order to secure an up-or-down vote.
  • All 3 circuit court nominees for whom the Majority Leader had to file cloture were nominated to fill judicial emergency vacancies and were rated unanimously “well qualified” by the nonpartisan ABA Standing Committee on the Federal Judiciary, the highest possible rating. Two of the circuit court nominees who required cloture – Adalberto Jordan of Florida and Andrew Hurwitz of Arizona both had the support of their Republican home state senators (and the third was from California, which has two Democratic senators).

Vacancies are taking a toll on the Tenth Circuit (Oklahoma, Kansas, Utah, Wyoming, New Mexico, Colorado)

  • Of the 12 active judgeships on this circuit, 2 are vacant.
  • This seat has been vacant for more than two years, when the previous judge retired (as opposed to taking senior status).
  • The slack is being picked up by several senior judges, including an 89 year-old LBJ nominee and a 96 year-old Nixon nominee.

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Gridlock or Bust: How the Senate GOP Has Abandoned Its Own Nominees for the Sake of Obstruction

To: Editorial boards and journalists

From: Marge Baker, Executive Vice President, People For the American Way

Subject: Gridlock or Bust: How the Senate GOP Has Abandoned Its Own Nominees for the Sake of Obstruction

Date: July 19, 2012

Yesterday, Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell got into a shouting match on the Senate floor, each of them accusing the other of purposefully stalling Senate business.

One of them was right. The other was making flimsy excuses.

Senate Republicans under McConnell’s leadership have routinely stalled the government’s business even on matters on which they agree with Democrats. Nowhere is this clearer than in the obstruction of  nominees to the federal courts, particularly those with strong bipartisan support. And nowhere is that clearer than the senseless filibuster of the nomination of Oklahoma’s Robert Bacharach to the Tenth Circuit Court of Appeals.

Bacharach has the strong support of both of Oklahoma’s Republican senators. He was approved by a strong bipartisan majority in the Senate Judiciary Committee. Yet McConnell, citing a nebulous so-called rule named after South Carolina segregationist Sen. Strom Thurmond, refuses to hold a vote on Bacharach’s confirmation. (Under Senate rules, the majority cannot schedule a vote without the consent of the minority party. Denying that consent for President Obama’s judicial nominees has been standard operating procedure for McConnell. This quiet filibuster is usually hidden from the public unless the majority calls for a cloture vote to end it.)

Oklahoma’s Robert Bacharach and the 20 other highly qualified judicial nominees awaiting confirmation deserve swift up-or-down votes from the full Senate.

McConnell is misleading Americans on the extent of his own obstruction.

In their exchange yesterday, Sen. McConnell accused Sen. Reid of “basically trying to convince the American people that it’s somebody else's fault, that the Senate is not doing the basic work of government.”

The Senate is not doing the basic work of government. But the blame for that lies squarely on the shoulders of McConnell and his party.

Look at the progress on the confirmation of President Obama’s judicial nominees: the average federal court nominee under President Obama has waited 103 days after committee approval just for an up-or-down vote from the Senate. The average wait for George W. Bush's nominees at this point in his first term was just 34 days. The result is that only 153 Obama nominees have been confirmed so far, compared with 197 Bush nominees at the same point in his term. While Bush cut the judicial vacancy rate by over one third during his first term in office, Obama is set to end his first term with more vacancies than he started with, capping off a historically long period of high vacancy rates.

McConnell, unsurprisingly, has been trying desperately to hide these numbers. In an op-ed in the Los Angeles Times yesterday, he and Sen. Charles Grassley claimed that the Senate today “already has confirmed 152 of his lower-court nominees, compared to only 119 of Bush's under similar circumstances.”

What they call “similar circumstances” is what the rest of us would call “apples and oranges.” The senators are comparing the confirmation rate in Obama’s first term to that in Bush’s second term – when, because of a cooperative Senate he had many fewer judicial vacancies to fill.

McConnell is prioritizing obstruction over the wishes of his fellow GOP senators.

Tenth Circuit nominee Robert Bacharach of Oklahoma has the strong support of both of his home-state GOP senators. In fact, Sen. Coburn has publicly spoken out against the needless obstruction of Bacharach’s nomination, calling McConnell’s delays “stupid.” Bacharach’s position is similar to that of First Circuit nominee William Kayatta of Maine, who is being filibustered by the Senate GOP despite support from home-state Republican senators Olympia Snowe and Susan Collins.

Both nominees received bipartisan support in the Senate Judiciary Committee. Both have earned the American Bar Association’s highest rating.

Yet Kayatta has been waiting for a Senate vote since April and Bacharach since June. And if McConnell continues to have his way, neither nominee will even reach a Senate vote this year. Why? The Minority Leader arbitrarily announced last month that he would block all Circuit Court nominees until after the presidential election.

Sen. McConnell is trying to fool the American people with his creative statistics and denials. Under his leadership, the Senate GOP has become a force of gridlock, stopping even routine government business at every opportunity. If Sen. McConnell wants to prove that current Senate dysfunction is not the fault of his party, he can start by allowing a vote on Robert Bacharach.

Press contact: Miranda Blue, media@pfaw.org, (202) 467-4999

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Editorial Memo: In Fight over Maine Judicial Nominee, a Perfect Storm of Senate Dysfunction

To: Editorial boards and journalists
From: Marge Baker, Executive Vice President, People For the American Way
Subject: In Fight over Maine Judicial Nominee, a Perfect Storm of Senate Dysfunction
Date: July 12, 2012

How far will Senate Republicans go to obstruct government business in the final months before the presidential election? The fight over a noncontroversial Maine judicial nominee, which is coming to a head this week, shows just how far.

The struggle to confirm Maine’s William Kayatta to the First Circuit Court of Appeals is a perfect illustration of the Senate GOP’s commitment to obstruct all progress that might in any way help President Obama – even if it means throwing members of their own caucus under the bus. Maine’s Republican senators both strongly support Kayatta’s nomination. He was approved overwhelmingly by a bipartisan majority of the Senate Judiciary Committee. (The only no votes were from Utah Sen. Mike Lee, who is voting against all nominees in protest of President Obama’s recess appointments and Alabama Sen. Jeff Sessions, who objected to Kayatta’s role on an ABA panel that had the nerve to find Elena Kagan “qualified” for the Supreme Court).Yet his nomination has been waiting on the Senate calendar since April 19. And if Kayatta is not confirmed before the Senate leaves for its summer recess, the seat he’s been nominated to fill could be left open for more than a year.

What should be a fairly straight-forward job for the Senate has turned into an election year struggle of wills – at the cost of Americans who rely on fully functioning courts and a Congress that does its job.

Here’s how it happened.

Last month, Senate Minority Leader Mitch McConnell took the extraordinary step of announcing that Republicans would block all votes on all circuit court nominees between now and Election Day. This wasn’t welcome news to some Senate Republicans who have circuit court nominees who they are eager to put on the bench in their states. William Kayatta from Maine has the backing of Senators Snowe and Collins, and Robert Bacharach from Oklahoma has the support of Senators Coburn and Inhofe. Snowe and Collins have said they would support cloture to end the filibuster of Kayatta. Collins said in a statement that “It simply isn’t fair that Bill [Kayatta], who would be a superb judge, now appears to be caught up in election year politics. “ Coburn was more blunt, publicly stating, “I think it’s stupid.”

At the same time, Senate Republicans announced that they would continue to allow votes on district court nominees -- as if that were some great concession on their part instead of a basic part of their job. But it turns out that even that one bare promise was an empty one: For the past two months, the confirmation of judicial nominees has slowed to virtually a standstill, with an average of less than one vote per week.

This week, for example, Senate Republicans have allowed just one judicial confirmation vote: on a district court nominee in Tennessee. In fact, over the past eight weeks there have been only seven confirmations, of five district and two circuit court nominees. Both circuit court confirmations required a cloture vote to overcome Republican filibusters, after which the decidedly noncontroversial nominees were easily confirmed – one even by voice vote.

By contrast, during the same period preceding George W. Bush’s reelection campaign, the Senate confirmed nearly four times as many judges: 25 (20 district and five circuit). Under the “regular order” established during the Bush administration, the Senate should be holding at least three to four confirmation votes each week. Failing to move at that pace will mean that the Senate simply won’t be able to keep pace with the nominees being reported by the Senate Judiciary Committee.

Kayatta is now one of 18 highly qualified pending nominees who have been approved by the Judiciary Committee and who have been waiting for a simple up-or-down vote from the Senate. These are not controversial picks: 15 were approved by the Judiciary Committee with strong bipartisan support, and ten have been waiting for a floor vote since April or earlier.

The filibuster of Kayatta, who has been waiting since April 19 for a Senate vote despite enthusiastic support from his Republican home-state senators, is a perfect illustration of this mindless obstruction.

Kayatta is extraordinarily well qualified to be a circuit court judge

  • An ABA panel unanimously found him well qualified, its highest possible evaluation.
  • He has more than 30 years’ experience as a law firm attorney (and partner since 1986) specializing in complex civil litigation at both the trial and appellate levels.
  • He is a recognized legal leader in Maine: He has served as chairman of the Maine Professional Ethics Commission, chairman of the Maine Board of Bar Examiners, and president of the Maine Bar Association.
  • He has argued two cases in front of the U.S. Supreme Court.
  • In 2011, the U.S. Supreme Court appointed him a Special Master in a water rights case of original jurisdiction. This is a powerful indication of the Court's confidence in his legal abilities.
  • Throughout his career, he has maintained a substantial pro bono practice. In 2010, he received an award from the Maine Bar Foundation for pro bono service on behalf of low-income Mainers. He has also received awards from the Disability Rights Center of Maine, the Maine Equal Justice Partners, and the Maine Children’s Alliance for his pro bono representation of disabled Maine children.


Delaying a vote until after the election will harm people throughout New England

  • With only five active judgeships, the First Circuit has the fewest judges of any circuit. As a result, any vacancy there is felt most acutely.
  • The senior judge who Kayatta would replace has agreed to carry a full caseload only until September. If the confirmation vote is delayed until after the election, that judge’s cases will have to be divided up among the current judges this September, only to be reallocated yet again a few months later once Kayatta is confirmed.


Kayatta has earned strong bipartisan support

  • He has the support of President Obama and both of Maine’s Republican senators.
  • The Judiciary Committee approved his nomination with only two no votes.
  • This is exactly the kind of destructive partisan recklessness that has driven Sen. Snowe to retire and which will make it harder for a Republican to be elected as her replacement.


On both the circuit and the district court level, Republicans are needlessly blocking votes on eminently qualified, consensus nominees whose only “flaw” seems to be that they were nominated by President Obama. It’s time Senators rolled up their sleeves and did the business of the country they were sent to office to do.

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Hurwitz Finally Confirmed By Voice Vote

Senate Republicans agree to a voice vote to confirm a nominee who they claimed was not qualified to be a federal judge.
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PFAW Applauds Nomination of Caitlin Halligan to DC Circuit

President Obama yesterday named two nominees for the Court of Appeals for the DC Circuit, Caitlin Halligan and Sri Srinivasan. People For the American Way President Michael B. Keegan issued the following statement:

“We applaud President Obama for renominating Catilin Halligan to the D.C. Circuit, the nation's second highest court. Halligan has unimpeachable qualifications and is clearly qualified for a lifetime seat on this court. In the midst of a pervasive vacancy crisis on the federal bench, it is galling that Halligan’s confirmation was blocked by the relentless partisanship of Senate Republicans last year. She would bring an impressive resume to the court, and her nomination should be taken up and approved by the Judiciary Committee, which is already well acquainted with her record, as soon as possible.

“Sri Srinivasan was also nominated by President Obama. While we are glad to have a nominee for this important circuit, we have questions, based on Srinivasan’s record, about the extent of his commitment to civil liberties, legal protections for workers and the rights of individual Americans. An expeditious hearing by the Judiciary Committee is the best way for senators – and the American people – to learn more about the nominee and we urge the prompt scheduling of those hearings to consider his positions.

“There is also a third vacancy on this extremely important court and we urge the president to act expeditiously to nominate an individual for this seat with the credentials, professional background and demonstrated record of commitment to ensuring that the rights and interests of all Americans are adequately protected.”

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Another Day, Another Filibuster

The just-defeated filibuster of Justice Andrew Hurwitz to the Ninth Circuit Court of Appeals was unwarranted.
PFAW

Statement of People For the American Way on Ending the Filibuster of Andrew Hurwitz to the Ninth Circuit

The Senate today defeated a filibuster of the nomination of Andrew Hurwitz of Arizona to sit on the Ninth Circuit Court of Appeals in a 60-31 cloture vote. Once he is confirmed, Hurwitz, currently a justice on the Arizona Supreme Court, will fill one of 90 vacancies and 31 officially-designated judicial emergencies nationwide. He will serve on the Ninth Circuit, the busiest federal appeals court in the country. Despite the support of both of his Republican home-state senators and bipartisan approval in the Judiciary Committee, Republicans stalled Hurwitz's nomination on the Senate floor for over three months.

“Andrew Hurwitz, whose experience includes nine years on the Arizona Supreme Court, is clearly qualified to sit on the Ninth Circuit,” said Marge Baker of People For the American Way. “President Obama nominated a highly qualified jurist who garnered bipartisan support. Senators McCain and Kyl recognized his qualifications and supported his nomination to the Ninth Circuit, and he was approved by the Judiciary Committee with unanimous Democratic and significant Republican support. Yet for the Republican leadership who have blocked ongoing Democratic efforts to schedule a vote, that wasn't enough to earn Justice Hurwitz a timely vote from the Senate, even for a vacancy that's so urgent it's been labeled a ‘judicial emergency.’ Filibusters used to be reserved for only the most controversial of nominees. Today, Senate Republicans seem eager to block the workings of Congress and the courts at every opportunity.”

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