judicial nominees

PFAW: 6th Circuit Voting Rights Decision a Reminder to Progressives of Importance of Courts

Washington, DC – People For the American Way today said it was “disappointed” by a Sixth Circuit Court of Appeals decision allowing Ohio Secretary of State Jon Husted to move forward with a last-minute elections rule change that could leave thousands of Ohio provisional ballots uncounted. The unanimous three-judge panel, consisting of one George H.W. Bush and two George W. Bush nominees, overturned the ruling of District Court judge Algenon Marbley. Marbley had blasted Husted for making a last-minute rule change for the counting of ballots that could disenfranchise thousands of Ohioans.

“We are deeply disappointed by the Sixth Circuit’s decision,” said Michael Keegan, President of People For the American Way. “One of the most sacred rights in our democracy is the right to cast a vote that counts. Many Ohioans waited in line for hours on November 6 to cast a ballot. That right should never be allowed to be taken away by capricious rulings of elections officials. How many Ohioans will take pride that they voted, never realizing that a partisan election official ordered their ballot to be ignored? Would Husted be able to look citizens in the eye and tell them that their votes weren't counted?"

“Husted and his Republican colleagues across the country have been trying to game the system in every way possible to make it harder for certain Americans to cast ballots,” continued Keegan. “Across the country, they have run up against a strong and independent federal judiciary that has stood up for the rights of citizens. It is disappointing that the Sixth Circuit has broken that trend, ruling against the clear interests of Ohio’s voters. Let this be a reminder to progressives as President Obama begins his second term: the federal judiciary is the most lasting legacy of any president. Let’s work to make sure the next four years sees the confirmation of fair, impartial judges who will stick up for the rights of individual Americans under the Constitution.”

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Obama Reelection a Mandate for Strong, Fair Supreme Court Picks

With the right wing maintaining a narrow majority on the Court, a Romney victory could have meant an entrenched bias on the Court for decades to come.

Senate GOP Refuses to Allow Votes on 17 Judicial Nominees; Sharp Break from Past Practice

Washington, DC – Senate Republicans today refused to allow a vote on 17 pending federal district court nominees before leaving for recess. Senate Majority Leader Harry Reid requested unanimous consent to take up and confirm all 17 district court nominations on the calendar. Minority Leader Mitch McConnell refused, despite the fact that most of the nominees have strong bipartisan support and some have been waiting as long as five months for a Senate vote. Twelve of the pending nominees would fill seats that the Administrative Office of the US Courts has declared “judicial emergencies.”

There is strong precedent for the Senate confirming district court nominees before the end of a President’s term in office. In September of 2008, the Senate confirmed President Bush’s ten remaining district court nominees by unanimous consent one day after they were approved by the Judiciary Committee.

“Under the leadership of Sen. McConnell, Senate Republicans have taken obstruction to a new level,” said Marge Baker, Executive Vice President of People For the American Way. “Never before have district court nominees been subject to this amount of partisan obstruction. Democrats have been forced to file cloture petitions to break filibusters on 20 of President Obama’s district court nominees, compared to just one each under Presidents Bush and Clinton. President Obama’s district court nominees have had to wait three times as long as President Bush’s just for an up-or-down vote. This has nothing to do with the quality of the nominees -- once they reach a vote, the vast majority have been approved nearly unanimously. Indeed, most of the 17 nominees that the GOP rejected today were approved with bipartisan support in the Judiciary Committee. All have had the support of their home-state senators, Republican and Democratic.

“This obstruction has nothing to do with the nominees and everything to do with the GOP’s desire to obstruct Senate business at all costs. These costs can be seen in the twelve judicial emergencies that remain vacant because of this obstructionism. Senators Reid and Leahy are right to prioritize the confirmation of these nominees. Backlogs in the courts are ultimately passed down to Americans seeking justice. Mitch McConnell and the Senate GOP must stop playing political games with our courts.”

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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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LaBarbera and Lindevaldsen Say No to Gay Judges, Sad Sally Ride ‘Fell into Lesbianism’

Americans for Truth About Homosexuality’s Peter LaBarbera continued his discussion with Liberty University Law School’s Rena Lindevaldsen on Friday. The two revisited the topic of openly gay judges, specifically the Virginia prosecutor who was rejected from a judgeship simply because he was gay. That discrimination was ok, Lindevaldsen said, because “if you’re engaged in a lifestyle of immorality, whether that be a homosexual lifestyle or an adulterous relationship or fornication, that’s not the type of moral character that I believe should be someone who’s being appointed to become a judge”:

Lindevaldsen: I think we can equate this not only with the judiciary, but the same debate is taking place, you know, who we want to serve as our schoolteachers, for example. We want moral, upstanding individuals to serve as judges, and this debate’s taking place with schoolteachers too. So if you’re engaged in a lifestyle of immorality, whether that be a homosexual lifestyle or an adulterous relationship or fornication, that’s not the type of moral character that I believe should be someone who’s being appointed to become a judge.

I think it goes to fit moral character and I think that the necessary qualification of any judicial appointment. And therefore it is relevant, based on your conduct, to judge and decide whether you should be allowed to sit in the judiciary.

Immediately after Lindevaldsen and LaBarbera made the case that gay judicial nominees should be defined by and excluded for their sexual orientation, they changed the rules when it came to another prominent example of an openly gay person in public life. Lindevaldsen and LaBarbera heaped scorn on gay rights activists who have had the nerve to call the late Sally Ride, who lived for 27 years with her same-sex partner, a gay pioneer. Emphasizing Ride’s sexual orientation, LaBarbera said -- expanding on a tweet from shortly after her death --would be like defining her as an alcoholic if she had a drinking problem:

LaBarbera: They’re always using opportunities to promote what their version of reality on homosexuality. And really quickly, Sally Ride, another great example. Sally Ride was the first female astronaut, the first…and she had many amazing accomplishments. Unfortunately she also fell into lesbianism and left her husband, she was married, she ended up living in a lesbian lifestyle. She was not public about it. Now gay activists, like Michelangelo Signorile, are using her homosexual, you know, the fact that she practiced the homosexual lifestyle, to say, ‘Hey, this is another gay hero.”

Kirkwood: She was a female astronaut, now she’s the ‘lesbian astronaut.’

LaBarbera: Now she’s the lesbian astronaut, and you better believe in textbooks like in California where they’re teaching gay history now, there’s going to be Sally Ride. So people are going to learn Sally Ride as a, and we’re going a bit over here, they’re going to learn Sally Ride, Rena, as a gay hero, even though she wasn’t even public about it in her life.

Lindevaldsen: Yeah, because they need to contort our history to show that we’ve accepted this all along and that it’s perfectly normal, and see you too can do this and become great things. And you can, you can accomplish things, but that’s not who she was, that doesn’t define who she was and what she accomplished.

LaBarbera: And Rena, I tweeted, and I knew this was going to get me in trouble, but I tweeted, ‘Did she have a drinking problem too?’ In my tweet, I said that she made great accomplishments. But she should not be, and I didn’t, of course she doesn’t, I don’t know if she had a drinking problem or not, but my point was the fact that she practiced homosexuality would be about as relevant as saying, ‘Sally Ride, hey people who drink can be great.’ I mean it’s still immoral behavior, it’s very sad to me that she was involved in that lifestyle. The fact that she was in that lifestyle doesn’t take away from the great accomplishments that she had. But the point is gay identity politics now wants to seize her as a hero.

 

Virginia Rejects Openly Gay Judicial Nominee After Campaign By Far-Right Activists

Virginia’s House of Delegates yesterday rejected the nomination of a state prosecutor to serve as a judge – just because he is openly gay.

Tracy Thorne-Begland, a Navy veteran who has been a prosecutor in Richmond for 12 years, enjoyed bipartisan support in the House of Delegates until, at the last minute, he came under attack from far-right Delegate Bob Marshall and the right-wing Family Foundation. The Richmond Times Dispatch reports:

A late-hour lobbying offensive by social conservatives prevailed in the House of Delegates early Tuesday to torpedo bipartisan support for the judicial nomination of an openly gay Richmond prosecutor.

After a lengthy discussion, the GOP-controlled House of Delegates defeated the nomination of Tracy Thorne-Begland, Richmond's chief deputy commonwealth's attorney. He would have been the first openly gay judge elected in Virginia.

Thorne-Begland received 33 votes, and 31 delegates voted against him. He needed a majority of the 100-member House -- 51 votes -- to secure the judgeship.

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In an email blast to supporters late last week, the Christian conservative Family Foundation questioned Thorne-Begland's fitness for the bench given his support for gay marriage, which is not legal in Virginia. Thorne-Begland and his partner, Michael, live together and are raising twins.

Marshall, too had charged that Thorne-Begland pursued an "aggressive activist homosexual agenda.

Opponents of gay rights, in their effort to keep LGBT people out of the public square, have in the past few years gone after several openly gay judges and judicial nominees. Supporters of California’s discriminatory Prop 8 tried to get a federal judge’s ruling against them thrown out because the judge is openly gay. Another judge issued an epic takedown of their argument.

A number of Republican delegates in Virginia, as well as the state’s socially conservative governor Bob McDonnell backed Thorne-Begland’s nomination until Del. Marshall began his onslaught.

Del. Marshall is the one who claimed in 2010 that disabled children are God's punishment for abortion. On Don’t Ask, Don’t Tell – a policy that Thorne-Begland worked to end after his distinguished career in the Navy – Marshall said openly gay troops would distract their fellow servicemembers: "It's a distraction when I'm on the battlefield and have to concentrate on the enemy 600 yards away and I'm worried about this guy whose got eyes on me." Once Don’t Ask, Don’t Tell was repealed, Del Marshall tried to get gay Virginians banned from the state’s National Guard.

Marshall later told the Washington Post that he objected to Thorne-Begland’s brave coming out in protest of Don’t Ask, Don’t Tell:

I would guess — law of averages — we’ve probably nominated people who have homosexual inclinations,” Marshall said. Marshall faulted Thorne-Begland for coming out as a gay Naval officer on “Nightline” two decades ago to challenge the military’s now-repealed ban on gays openly serving in the military. He said that amounted not just to insubordination, but to a waste of taxpayer dollars, since it resulted in his dismissal from the Navy. “The Navy spent $1 million training him,” Marshall said. “That’s cheating the country out of the investment in him.”

In the end, it was Del. Marshall’s arguments that won out in the effort to halt the career of a dedicated Virginia public servant.

PFAW

PFAW Memo: Debunking the GOP’s Disinformation Campaign on Judicial Obstruction

To: Interested Parties
From: Marge Baker, People For the American Way
Date: May 9, 2012
Subject: Debunking the GOP’s Disinformation Campaign on Judicial Obstruction

On Monday, 150 Americans from 27 states met in the White House with senior Administration officials and spent the day lobbying their senators to end the obstruction of qualified judicial nominees. For those Republican senators who may have thought the obstruction that is keeping our court system from functioning properly had gone unnoticed, it must have been an unpleasant surprise to learn their constituents are paying attention.

In response, Senate Republicans are throwing out a lot of irrelevant numbers and misleading comparisons in a desperate attempt to fog the issue, but they are plainly unable to rebut the clear fact that their constituents have noticed: that Republicans are needlessly obstructing judicial nominations.

For instance, because President Bush’s confirmed nominees at this point in his term were processed so much more quickly and fairly than have President Obama’s, the Republican Policy Committee concocts an excuse to ignore that inconvenient truth. They say we should be comparing President Obama’s first term to President Bush’s second term, because both saw two Supreme Court nominations that took up a lot of committee and Senate resources.

That lets them point out that President Obama has had more lower court confirmations in his first term than President Bush did in his second. But there is a reason Bush had fewer judges confirmed in his second term: There were fewer vacancies. When Bush entered office, there were 80 vacancies in the federal courts, a number he cut down to 37 by the end of his first term. In contrast, because of Republican obstruction, the number of vacancies began to climb sharply when President Obama became the person making the nominations, and it has remained at crisis levels his entire time in office.

In addition, although Sonia Sotomayor and Elena Kagan were confirmed in 2009 and 2010, the slow-walking of lower court nominations continued in ensuing years. In the 112th Congress, which began five months after Kagan’s confirmation, nominees have been held up on the floor more than three months on average, even if they are unopposed.

Republicans also blame President Obama for not making enough nominations. But the political reality is that the president needs the approval of home state senators if a nomination is to even get a committee hearing. And contrary to the practice of President Bush, the current White House actually consults home state senators in an effort to find consensus nominees. If GOP senators won’t work with the president to identify candidates who they can all agree on, the president is not the one to blame.

In any event, finding a nominee for every vacancy would not solve the bottleneck that Republicans have created at the end of the confirmation process. There are currently 19 nominees on the Senate calendar awaiting votes who could be confirmed today if the Republican leadership gave their consent.

But perhaps the most disingenuous talking point comes from Sen. Chuck Grassley, ranking Republican on the Judiciary Committee. In yesterday’s floor debate on the confirmation of Kristine Baker to a district court in Arkansas – whose nomination has been pending on the floor since February – he says a Bush nominee to the same district was treated far worse:

I would note that President Bush’s nominee, J. Leon Holmes, sat on the executive calendar for more than 14 months awaiting confirmation. From nomination, his confirmation took over 17 months. Again, why was President Bush’s nominee treated worse than this President’s nominee?

Sen. Grassley isn’t comparing apples and oranges – he’s comparing apples and skyscrapers. Holmes was so controversial that even the Republican-controlled Judiciary Committee did not approve of his nomination. In a rare step reflecting serious concerns about the merits of the nomination, a sharply divided committee voted 10-9 to forward it to the floor without a formal endorsement. After that, it was the Republicans who then controlled the Senate who delayed the confirmation vote for more than a year, fearing the Senate would reject Holmes. When he was finally confirmed in 2004, it was by a 51-46 vote.

So Republicans delayed a vote on Holmes because he was extremely divisive and lacked support in the Senate. In contrast, Kristine Baker – who cleared committee with a 17-1 vote and was confirmed by a bipartisan voice vote – was delayed by Republicans because of the Sotomayor and Kagan confirmations?

Republicans cannot deny that they are making President Obama’s judicial nominations wait more than 4 times longer for votes than was the case at this point in the Bush presidency, even though most of them are consensus nominees with strong bipartisan support. Their efforts to distract the American people from that stark fact resemble the Wizard of Oz trying to get Dorothy to “pay no attention to that man behind the curtain.”

Ultimately, though, this isn’t about statistics. It’s about people. It’s about the people who count on having their day in court, only to learn first-hand that justice delayed is justice denied. It’s the victims of predatory lending practices, consumer fraud, environmental destruction, and civil rights violations. It’s the business owners who can’t get relief from anti-competitive activities, can’t complete their mergers, and can’t enforce their contracts. This is about Americans across the nation who deserve a justice system that works.

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

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Memo: Behind the Scenes, Silent Obstruction of Judicial Nominees

To: Interested Parties
From: Marge Baker, People For the American Way
Date: May 4, 2012

Subject: Behind the Scenes, Silent Obstruction of Judicial Nominees

Senate Republicans’ systematic obstruction of President Obama’s nominees to the federal courts is by now well known. The President’s confirmed nominees have on average waited four times as long between committee approval and a vote from the full Senate than did George W. Bush’s nominees at this point in his term. The vast majority of these, once the GOP’s obstruction options are exhausted, are confirmed overwhelmingly.

What is less well known – and largely hidden in behind-the-scenes Senate procedure – is that this systematic obstruction often begins long before a nominee has been sent from the Judiciary Committee to the Senate floor. In fact, Senate Republicans are routinely using procedural tactics to delay the consideration and approval of the President’s judicial nominees by the Judiciary Committee.

This silent obstruction adds another layer of gridlock to an already gridlocked process – and it does so away from the spotlight of the media and the scrutiny of constituents.

Pre-Committee: Withholding Blue Slips

Under procedures adopted by Chairman Leahy as a bipartisan courtesy to his fellow senators, the Judiciary Committee does not consider a judicial nominee until both of that nominee’s home-state senators have submitted a “blue slip” allowing the nominee to move forward. The submission of a blue slip does not imply support of the nominee – merely that the nomination should be considered by the Judiciary Committee.

Despite the serious implications of withholding a blue slip, senators can do so without giving a reason and even without a public announcement – making it impossible to know how often the practice occurs. But several recent incidents that have been publicized show just how willing some GOP senators are to prevent unquestionably qualified and mainstream nominees from even reaching a Senate hearing.

In Arizona, a two-year-old emergency vacancy remains unfilled despite the existence of a well-qualified nominee who has been waiting since June 2011 for a Senate hearing. Rosemary Márquez, President Obama’s nominee to the District Court based out of Tucson, was rated unanimously qualified by the American Bar Association and has the support of a large cross-section of Arizona’s legal community. But Sens. McCain and Kyl have held up Márquez’s nomination for ten months by refusing to submit blue slips to the Judiciary Committee.

Márquez is not alone. In February, the President nominated Elissa Cadish, a state district court judge in Nevada, to fill an empty seat on the U.S. District Court. Cadish is widely recognized as being qualified for the federal bench, including by a unanimous panel of the American Bar Association. But Sen. Dean Heller is withholding his blue slip anyway and thus blocking the Judiciary Committee from even considering her nomination.

Heller’s objection to Cadish is this: one month before the Supreme Court overturned decades of case law to hold that the Second Amendment guarantees an individual right to bear arms, Cadish stated – accurately – that then-current case law did not recognize such a right. For a nominee for a lower federal court, who is expected to rely on Supreme Court precedent rather than create her own, it was a statement of fact, one that four members of the United States Supreme Court agreed with just a few weeks later. For Heller, it disqualifies her from even being considered for a federal judgeship.

Similarly, Eleventh Circuit nominee Jill Pryor is being kept from a Senate hearing by home-state Republican senators who have already acknowledged that she is qualified for a federal judgeship but want her in a different seat – one on the U.S. District Court. Georgia senators Saxby Chambliss and Johnny Isakson have said that they’re fine with Pryor being a federal judge. Pryor’s skills and experience aren’t in doubt: she’s received a host of awards for her work in the courtroom and has been a leader in Georgia’s legal community. The senators’ beef is simply that they have someone else in mind for the Circuit Court seat the president nominated her to, and they seem willing to keep an emergency vacancy unfilled until they get their way.

All of these nominations are being held hostage by Republican senators who are silently filibustering them by refusing to consent to the Judiciary Committee’s even holding hearings on their merits.

In Committee: No-Shows and Routine Delays

Twice this year, Republicans on the Judiciary Committee have prevented nominees from moving forward by simply not showing up at committee hearings and preventing a quorum. These “boycotts” kept the committee from holding votes on nominees who had already had hearings before the committee, further delaying already delayed nominations.

The walk-outs provided a more public accent to what was already routine obstruction by Judiciary Republicans. Committee rules allow the minority party to delay votes on nominees by requesting a one-week holdover, a provision designed to permit members who have questions about a particular nominee to get those questions answered. Under President Bush, such holdover requests were occasionally made to consider particular questions about particular nominees. Under President Obama, Republicans on the Judiciary Committee have used this tactic routinely, holding over all but five of more than 150 nominees.

Conclusion

Senate Republicans have been using nearly every procedural tactic at their disposal to stall President Obama’s judicial nominees at every step in the nominations process. Very few of these maneuvers come with explanations, and those that do are often blown far out of proportion.

The result has been a record vacancy crisis in the federal courts, inexcusable delays for Americans seeking justice, and eroded trust in gridlocked Congress.

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

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Sessions Objects to Judicial Nominee Who Called Kagan ‘Qualified’

The Senate Judiciary Committee yesterday approved the nomination of Maine attorney William Kayatta Jr. to sit on the 1st Circuit Court of Appeals. Only two committee members voted against allowing Kayatta a vote from the full Senate: Utah’s Mike Lee, who is still protesting all Obama nominees, and Alabama Sen. Jeff Sessions, who gave the following reason, according to the Portland Press Herald:

In a statement on his opposition to Kayatta's nomination, Sessions cited Kayatta's role as lead evaluator for the American Bar Association's Standing Committee on the Federal Judiciary during the nomination of U.S. Supreme Court Justice Elena Kagan.

Sessions said Kayatta saw fit to give Kagen the highest rating despite her lack of substantial courtroom and trial experience, as a lawyer or trial judge. Sessions said the rating was "not only unsupported by the record, but, in my opinion, the product of political bias."

Yes, that’s right. Kayatta was involved in the American Bar Association’s nonpartisan rating process, which dared to call the solicitor general and former Harvard Law School dean “well qualified” for the job of Supreme Court Justice.

Sessions, one of the most outspoken opponents of Kagan’s Supreme Court nomination frequently slammed her lack of judicial experience in her confirmation hearings two years ago. He seemed to conveniently forget that the late conservative icon Chief Justice William Rehnquist also came to the High Court without having previously served as a judge – as have over one third of all Justices in U.S. history. The American Bar Association similarly found Rehnquist qualified for the job and called him “one of the best persons available for appointment to the Supreme Court [pdf].

It would be funny if it weren’t so appalling: Sessions’ grudge against Kagan runs so deep that he not only objected to her nomination, he’s objecting to anyone who who’s dared to call her qualified for her job.

PFAW

Want to Help the Economy? Start by Maintaining the Courts

The Atlantic’s Andrew Cohen explains why confirming nominees to our federal courts and helping to boost the economy aren’t two separate issues:

It's not complicated. When a federal judgeship goes vacant because of Senate intransigence, where judicial nominees with bipartisan approval are held up for no good reason, it's not typically the criminal cases which get unreasonably delayed. Criminal defendants have a speedy trial right under the Sixth Amendment. There is no such right for civil litigants. This means those litigants have to wait, often for years, for a trial judge to make available a time for the disposition of a dispute. The problem only gets worse, like it is now, when district courts are understaffed and judges are forced to handle more than their expected case load.

And who are civil litigants in our nation's federal courts? They are corporations and small business owners, investors and merchants, employees and employers, people just like you and me. Well, maybe not you and me since I didn't file a lawsuit this past year and you probably didn't either. But a lot of other people sure did. In 2010, according to federal court records, no fewer than 282,896 federal lawsuits were filed in America. In 2011, 289,252 lawsuits were filed, a 2.2 percent increase from the year before. The latest statistics reveal that there are currently 270,839 pending civil cases in our federal courts.

There's more alarming news. As Mike Scarcella reported last week in the National Law Journal, the Administrative Office of the U.S. Courts announced last week that there was "an 11 percent increase in intellectual property cases and a 15 percent increase in consumer credit filings" last year. The total number of pending cases in the federal system, including criminal cases, now is 367,600 and, guess what? Even as the number of federal laws (and federal crimes) increases, Congress plans to cut the budget for the federal judiciary come next January. Fewer judges. A smaller budget. Signposts on the road to third-world justice.

So what happens to many of these cases when our benches remain empty? They languish in limbo and the litigants have to live with the financial uncertainty that pending litigation brings. If you are sued for a million dollars, for example, you might choose not to invest that million dollars in a new store, or in hiring new employees, until the lawsuit is over. And if you are suing for money, you aren't likely to spend it until you get it. What federal trial judges do for these litigants, therefore, isn't just to pick a winner and a loser in a particular. The court system provides the oil that helps run the machinery of commerce.
 

PFAW

Senate Confirms Groh and Fitzgerald; Votes Should be the Norm, Not the Exception

The Senate today voted overwhelmingly to confirm two nominees to federal district courts, Gina Groh of West Virginia and Michael Fitzgerald of California’s Central District. Both nominees had been waiting over four months - Groh more than five - for votes from the full Senate, despite having received unanimous approval from the Judiciary Committee. They were the first nominees to receive votes as part of a Senate deal to move forward on 14 of 22 deliberately stalled judicial nominations.

Fitzgerald becomes the fourth openly gay person ever confirmed to the federal bench, the third during the Obama administration.

Marge Baker of People For the American Way issued the following statement:

“Because of today’s confirmation votes, people of West Virginia and Southern California will have a smoother path to justice as they seek their day in court. Votes like these should be the norm, not the exception. Judges Groh and Fitzgerald are both exceptionally qualified and enjoyed unanimous bipartisan support from the Judiciary Committee. It is absurd that they had to wait months simply to receive an easy and overwhelming confirmation vote.

“It is even more absurd that a deal had to be cut before Senate Republicans would even consider these nominees. That qualified and uncontroversial nominees like Groh and Fitzgerald are met with months-long filibusters is proof that the Senate GOP is more interested in creating gridlock than in doing its job.

“While President Obama’s judicial nominees have met with unprecedented obstruction, they have also been unprecedented in their diversity. For the first time in history, nearly half of this president’s confirmed nominees to the federal courts have been women. He has also nominated more people of color to the bench than any previous president and has nominated more openly gay people than all of his predecessors combined.

“The confirmations of Groh and Fitzgerald are the latest step forward in the president’s effort to put qualified, diverse judges in our federal courts – progress that has too often been stalled by GOP obstruction.”

 

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As Senate Cuts Deal to Move Some Judicial Nominees, PFAW Urges GOP to End Partisan Obstruction

Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell reportedly reached an agreement this afternoon to begin to alleviate the backlog of judicial nominees created by GOP obstruction.

According to reports, Republicans will allow votes on 14 pending district and circuit nominees by May 7th , the first seven before the end of this month.

Reid was forced to file petitions Monday to end GOP filibusters of 17 district court nominees, many of whom had been waiting for votes for more than three months. Prior to the Obama administration, only three district court nominees had been filibustered in the past 60 years. President Obama’s nominees to the federal courts have had to wait on average four times as long for a simple Senate vote as did President Bush’s nominees at this point in his presidency.

People For the American Way’s Marge Baker
issued the following statement:

“Today’s agreement is good news for many Americans who have been facing understaffed courts and delayed justice simply because of partisan gridlock in the Senate. But, unfortunately, today’s progress doesn’t end the Republican gridlock. Even after these 14 nominees are confirmed, far too many seats on our federal courts will still be vacant. President Obama’s nominees still face consistent, unprecedented delays. It is absolutely ridiculous that it took such pressure to allow votes on a group of eminently qualified nominees with strong bipartisan support.

“If Senate Republicans want to show Americans they’re serious about doing the work they were elected to do, they should allow votes on the remaining nominees pending on the Senate floor and additional nominees who will be reported by the Senate Judiciary Committee in the coming months. The GOP needs to kick its habit of unprincipled gridlock once and for all.”


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Edit Memo: Debunking the GOP’s Spin on Judicial Obstruction

To: Interested Parties

From: Marge Baker, People For the American Way

Re: Debunking the GOP’s Spin on Judicial Obstruction

Date: March 13, 2012

Senate Democrats are taking action this week to call Republicans on their unprecedented obstruction of judicial nominees, which over the past three years has left far too many of our nation's courtrooms empty. On Monday, Senate Majority Leader Harry Reid filed cloture petitions in an attempt to end the GOP filibusters of all 17 district court nominees currently waiting for Senate votes, most of whom have been stalled for over three months for absolutely no reason. And already, Senate Republicans have concocted a false spin in an attempt to cover for the mess they have helped to create in the federal courts.

Reid’s action is unprecedented: only two district court nominees were filibustered in the sixteen years of the Bush and Clinton presidencies. As of yesterday, nineteen of President Obama’s district court nominees have been filibustered.

If Republicans don’t back down and allow up-or-down votes on these nominees, the cumbersome cloture process will tie up the senate until early April – and it will become very clear to the American people that Republicans’ top priority is gridlock, not policy.

In response, Senate Republicans have united behind a message that seeks to blame President Obama for the gridlock they created. Their claim is that their unprecedented obstruction of judicial nominees is a direct response to President Obama’s recess appointments of a director for the Consumer Financial Protection Bureau and members of the National Labor Relations Board -- appointments that they neglect to mention were themselves necessary because of Republican obstruction.

This narrative is simply not true. Even a cursory look at the last three years shows that today’s Republican obstruction is not related to their fury at the president’s recess appointments. In fact, these unprecedented levels of obstruction have been going on since President Obama took office. By the end of 2011, before the recess appointments, President Obama's confirmed district court nominees had been stalled more than four times longer on average than President Bush's. That is the case today, as well.

The unjustified delays in 2009-2011 were hardly caused by recess appointments made in 2012.

Make no mistake: the Senate GOP’s obstruction of judicial nominees is part of a deeply cynical effort to create gridlock in Washington and to keep as many courtrooms empty for as long as possible in the hopes of having a Republican president fill them in 2013.

Our federal courts are now facing a historic vacancy crisis, and Americans are facing unjustified delays as they seek their day in court. Senate Republicans should ditch the false excuses for their obstruction, and start doing the job they were elected to do.

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

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Senate Obstruction Continues: The Chart

Last week, Senate Majority Leader Harry Reid told Politico that he plans to push forward on filling the federal courts, despite unprecedented Republican obstructionism. Here is what Americans who value the courts are up against:

Despite a vacancy crisis in the federal courts that has led to delayed justice for Americans across the country, Senate Republicans have been using every delay tactic in the books to prevent qualified nominees from getting through the system.

The dotted line represents the average time  President Bush’s confirmed judicial nominees at this point in his presidency had to wait for a floor vote after committee approval. The blue lines are President Obama’s nominees – almost all with overwhelming bipartisan support , yet mostly forced to wait for months on end for no reason.

If Senate Republicans keep filibustering these nominees, Sen. Reid will be forced to start a cumbersome and time-consuming cloture process for each and every one of them. Such filibuster abuse is a waste fo the Senate’s time, and it’s bad for America’s courts.
 

PFAW

Blinded by the Hate: The Real Problem With Judge Cebull's Email

This post originally appeared in the Huffington Post.

Earlier this week a Great Falls Tribune reporter found something startling in his inbox: a shockingly racist and misogynistic email forwarded from the most powerful federal judge in Montana, which "joked" that the president of the United States was the product of his mother having sex with a dog. The story soon became national news, with groups like ours calling on Judge Richard Cebull to resign. Cebull quickly apologized to the president and submitted himself to a formal ethics review, somewhat quelling the story. But the story is about more than one judge doing something wildly inappropriate and deeply disturbing. It's about a conservative movement in which the bile and animosity directed at the president -- and even his family -- are so poisonous that even someone who should know better easily confuses political criticism and sick personal attack. Come on: going after the president's late mother? Attempting to explain his email forward, Judge Cebull told the reporter, John S. Adams,

The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan. I didn't send it as racist, although that's what it is. Is sent it out because it's anti-Obama.

Judge Cebull is hardly alone in using the old "I'm not racist, but..." line. In fact, his email was the result of an entire movement built on "I'm not racist, but..." logic that equates disagreement with and dislike of the president with broad-based, racially charged smears. These smears, tacitly embraced by the GOP establishment, are more than personal shots at the president -- they're attacks on the millions of Americans who make up our growing and changing country. Mainstream conservatives have genuine objections to President Obama's priorities and policies. But since he started running for president, a parallel movement has sprung up trying to paint Obama as an outsider and an imposter -- in unmistakably racially charged terms. Too often, the two movements have intersected. The effort to paint Obama as a threatening foreigner sprung up around the right-wing fringe in the run-up to the 2008 election with the typically muddled conspiracy theory that painted him as both a secret Muslim and a member of an America-hating church. They soon coalesced in the birther movement, which even today is championed by a strong coalition of state legislators and a certain bombastic Arizona sheriff. But the birther movement, the "secret Muslim" meme and the idea that the president of the United States somehow hates his own country are no longer confined to the less visible right-wing fringe. Former House Speaker Newt Gingrich, until recently a frontrunner in the GOP presidential race, continually hammers on the president's otherness, most notably criticizing his "Kenyan, anti-colonial behavior." Rick Santorum flatly claims that Obama does not have the Christian faith that he professes, and eagerly courted the endorsement of birther leader Sheriff Joe Arpaio. And before they dropped out, Rick Perry and Herman Cain couldn't resist flirting with birtherism. But perhaps more than either of these fringe-candidates-turned-frontrunners, Mitt Romney has been catering to the strain of conservatism that deliberately confuses policy disagreements with racially-charged personal animosity. Romney went in front of TV cameras to smilingly accept the endorsement of Donald Trump, whose own failed presidential campaign was based on demanding the president's readily available birth certificate. And Gov. Romney continually attacks Obama -- falsely -- for going around the world "apologizing for America." Judge Cebull needs to take responsibility for his own actions. And if the GOP has any aspirations of providing real leadership to this country, it needs to jettison the deeply personal vitriol being direct against Barack Obama and start talking about real issues. When a federal judge has seen so much racially-charged propaganda against the president of the United States that he can claim not to know the difference between genuine disagreement and offensive personal smears, something in our discourse has gone terribly awry.

PFAW

Senate Set to Turn Attention to Judicial Nominations Backlog

Senate Majority Leader Harry Reid announced today that one of the key focuses of the Senate’s next five weeks of work will be “clearing the backlog of judicial nominees that threatens the effectiveness of our justice system.”

Reid’s announcement is important for several reasons. Because of unyielding Republican obstructionism, Senate Democrats have been unable to schedule confirmation votes on all but a few federal judicial nominees in the past several months. This situation had created a backlog of nominees waiting for Senate votes and a vacancy crisis in the federal courts, where about one in ten seats is vacant.

The reason why it’s been so hard for Democrats to schedule votes on President Obama’s judicial nominees is that the Senate GOP has in the past few years taken full advantage of all the tools of obstruction that it has available. The Senate has to have unanimous consent to schedule an up-or-down vote – something that in the past has been routinely granted to judicial nominees with strong bipartisan support. But since President Obama took office, Senate Republicans have been refusing to grant votes on nearly every nominee – even the vast majority who have little to no Republican opposition -- effectively filibustering dozens upon dozens of nominees. Only after months of delay are the votes finally allowed. Last week, Senate Democrats made it clear that they’d had enough and filed cloture to end the filibusters of two of the nominees – each of whom was subsequently confirmed in overwhelming numbers.

That’s right: Senate Republicans haven’t just been obstructing nominees who they find fault with – they’ve been obstructing everybody. President Obama’s nominees have been forced to wait an average of 100 days after committee approval just to get a yes-or-no vote from the Senate. The average wait for George W. Bush’s nominees at this point in his presidency was 24 days.

This afternoon, senators voted on the nomination of Margo K. Brodie, to the U.S. District Court for the District of Eastern New York. Although she was unopposed in the Judiciary Committee, Brodie has waited for more than four months for her nomination to be voted on. She was approved on a vote of 86 to 2.

There are now nineteen judicial nominees still waiting for a Senate vote, most of whom were approved by the Senate Judiciary Committee with absolutely no opposition. Ten of them have been waiting three months or more from a vote, and ten have been nominated to fill officially-designated judicial emergencies. Fourteen of the twenty are women or people of color and one is an openly gay man.

Sen. Reid is doing the right thing in calling out Republicans on their obstructionism and ensuring that our courts continue to be fair and functioning.
 

PFAW

White House Blasts Senate GOP for Filibuster of 11th Circuit Nominee

White House Press Secretary Jay Carney began his press briefing today by pointing out the absurdity of the Senate GOP’s persistent stalling of the president’s judicial nominees, most recently 11th Circuit nominee Adalberto Jordán.

Jordán is a consensus nominee supported by both of his home-state senators – Republican Marco Rubio and Democrat Bill Nelson – and if confirmed will become the first Cuban American to sit on the 11th Circuit Court of Appeals, which has jurisdiction over the largest Cuban American population in the country. What’s more, the seat he has been nominated to fill has been officially designated a judicial emergency.

Despite his qualifications, bipartisan support, and the historic import of the nomination, the GOP filibustered Jordán’s nomination for four months. After the Senate finally voted to end the filibuster last night Jordán’s nomination was held up once more for reasons having nothing to do with him or with the people of Florida, Georgia and Alabama. One senator, Rand Paul of Kentucky, used an obscure rule to take Jordán’s nomination hostage to promote a bill curtailing foreign aid to Egypt.

Carney told the press:

Before I get started, I wanted to make note, if I could, of a development in the Senate. As you may know, but may not, the Senate is soon scheduled to confirm Adalberto Jordán, our nominee for the 11th Circuit. Jordán is a current, well-respected District Court judge, supported by Senators Nelson and Rubio, and he was reported unanimously out by the Judiciary Committee months ago. And he will now be the first Cuban American on the 11th Circuit.

Despite his sterling credentials and the bipartisan support that he enjoys, Republicans filibustered this nomination. To overcome the filibuster, Leader Reid had to file cloture, a procedure that while once extraordinary is now commonplace out of necessity. Cloture was invoked last night, 89 to 5, but Republicans are still forcing the Senate to burn time in a blatant delay tactic. Leader Reid had to go through extraordinary measures to get a judge confirmed with no Republican opposition, and a seat he will fill is a judicial emergency seat.

Now, the reason why I raise this, even though Mr. Jordán will be confirmed, is that it is so indicative of a breakdown in the system when a nominee as highly qualified as he is, with bipartisan support as he has, who's reported out of committee unanimously, still faces filibusters. And you have to ask yourself why that is. It's just simply delay tactics, and they're shameful.

There are 17 other judicial nominations pending on the Senate calendar; 14 were reported out unanimously; seven of those would fill judicial emergencies and seven are represented by at least one Republican senator. And yet the delay tactics continue.

With that, I will take your questions. Hello.
 

PFAW

Senate GOP Continues to Obstruct First Cuban American 11th Circuit Nominee

The Senate today voted 89-5 to end a GOP filibuster of the nomination of Adalberto José Jordán to sit on the 11th Circuit Court of Appeals, only to be met with another shameless Republican delaying tactic. Despite the overwhelming vote in favor of ending the filibuster on Jordán, one GOP senator invoked a “post-cloture period,” which will force the Senate to wait another 30 hours before taking a final vote on the nomination.

Once he is confirmed, Jordán will become the first Cuban American to sit on the 11th Circuit, which has jurisdiction over Florida, Georgia and Alabama.

Jordán, who has been a federal district court judge in Florida since 1999, has the full support of his home-state senators, Democrat Bill Nelson and Republican Marco Rubio, and was approved unanimously by Democrats and Republicans on the Judiciary Committee. An ABA panel unanimously gave him its highest rating of “well qualified.” Yet despite unquestioned qualifications and overwhelming bipartisan support, Jordán was forced to wait four months for a vote after he was approved without objection by the Judiciary Committee.

“No wonder Americans think Washington is broken,” said Marge Baker of People For the American Way. “The Senate GOP, presented with an impeccably qualified nominee for a judicial vacancy that desperately needs to be filled, insisted on trying to block the nomination. They chose to filibuster for four months a nominee to whom they had no objection, and then, even after an overwhelming vote to end the filibuster, added another needless delay.

“In filibustering Jordán’s historic nomination all these months, the GOP is pointedly ignoring the glowing endorsement of one of its own members, Sen. Marco Rubio, and the support of Florida’s Cuban American community, for whom this nomination is a historic first. This is a party that is putting gridlock above all else – and the American people are noticing. Now it is time for the Senate to put obstruction aside and confirm Jordán and the other 17 highly qualified nominees who have cleared the committee and are awaiting a vote.”

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Florida Nominee to Test How Far GOP Will Take Obstruction

As Paul wrote earlier today, Senate Majority Leader Harry Reid has schedule a vote on Monday to break the GOP filibuster of Adalberto Jordán, a Florida judge nominated to fill a judicial emergency on the 11th Circuit Court of Appeals. If confirmed, Jordan would be the first Cuban American judge on the 11th Circuit, which oversees Florida, the home of the United States’ largest Cuban American population.

What’s most notable about this vote is that it’s happening at all.

Traditionally, nominees like Jordán – who has the support of both his home-state senators, a Republican and a Democrat, and who was approved unanimously by the Judiciary Committee – would be swiftly confirmed, not be filibustered by the minority party.

But the Senate GOP hasn’t been so fond of Senate tradition, or efficient management, when it comes to confirming President Obama’s nominees. Instead, the GOP is filibustering Jordán and sixteen other nominees, the vast majority of whom have broad bipartisan support.

Below is an updated chart comparing how long each nominee on the Senate calendar has been waiting for an up-or-down vote, compared to the average wait time for Bush’s nominees at this point in his presidency.

The difference is striking:

The Senate GOP has been doing everything it can to gum up the works of the Senate – even when it means causing a four month delay for a widely-admired, bipartisan, historic nominee for a seat that has been designated a “judicial emergency.”

The pressure is now on Sen. Marco Rubio, a new favorite in the GOP, to convince his fellow Republican senators to put aside politics and confirm Jordán.
 

PFAW
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