Obstruction

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

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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.
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Vitter Single-Handedly Deprives Louisianans of Their Day in Court

Sen. David Vitter's single-handed partisan obstruction of a qualified judicial nominee is a far cry from the principles he claimed when a Republican was president.
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For Judicial Nominees, The Hidden Obstruction Continues

Ongoing Republican abuse of committee procedures is keeping our nation's courtrooms empty.
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PFAW Celebrates Confirmation of Paul Watford to Ninth Circuit

 The Senate today confirmed the nomination of Paul J. Watford to sit on the Ninth Circuit Court of Appeals. Watford, who has a stellar resume as a Supreme Court clerk, prosecutor and appellate litigator will fill one of three emergency vacancies on the Ninth Circuit, the busiest circuit in the country. He will become just the fourth African American ever to serve on the Ninth Circuit.

Despite Watford’s qualifications and the urgency of filling the vacancy, Senate Republicans stalled his nomination for over three months after he was approved by the judiciary committee. Sen. Reid was forced to file cloture to break the months-long filibuster of Watford’s nomination. Faced with widespread support for the nomination, including from their own constituents, Republicans dropped their planned filibuster this afternoon and at last allowed a straight yes-or-no vote. Watford was confirmed in a 61 to 34 vote.

“Paul Watford is a stellar choice for the Ninth Circuit,” said Marge Baker of People For the American Way. “He promises to be an intellectual leader on the court and a fair and thoughtful jurist. He also makes history as only the fourth African American judge ever elevated to the Ninth Circuit, and one of only two African Americans currently sitting on the 29-member court.

“It is shameful that Senate Republicans filibustered for so long such a highly qualified nominee to fill an emergency vacancy. Sen. Reid is to be commended for forcing a vote. Again and again, the Senate GOP has used political gridlock to interfere with the proper functioning of America’s courts. The result has been an unprecedented vacancy crisis and unacceptable delays for individuals and businesses seeking their day in court. The American courts deserve better than this unprincipled, unrelenting gridlock.”

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White House Condemns Obstruction of Judicial Nominations

Jay Carney discusses the unprecedented obstruction of qualified judicial nominees at the daily White House press briefing.
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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President Obama Committed to Continued Push on Judicial Nominations

Capping off an extremely important day of discussions with senior White House officials and Capitol Hill offices about ending the unprecedented Republican obstruction that is contributing to our severe federal judicial vacancy crisis, several state and national advocates had the opportunity to meet with President Obama about the urgency of addressing this crisis.

PFAW President Michael Keegan and I joined several representatives from among the 150 advocates from 27 states who participated in the Summit, in a meeting in the West Wing of the White House, where we heard the President reaffirm his commitment to press for the confirmation of judicial nominees who are ready for a vote in the full Senate or being considered by the Senate Judiciary Committee – and his commitment to continue vetting and making nominations through the balance of this year in an effort to fill the remainder of the vacancies.

We celebrated the Administration’s extraordinary success so far in diversifying the federal bench, while agreeing that there was even more to be done. Advocates talked about the millions of Americans who are denied meaningful access to the courts because there simply are not enough judges on the bench. And we heard the President affirm the importance of pressing obstructionists in the Senate to end the unprecedented dysfunction that is impeding individual Americans’ access to justice.

For me this was a sobering day as we focused on the urgency of filling our federal bench with quality judges who will keep faith with the Constitution -- and inspiring to see the allies we have in states around the country, on Capitol Hill, and in the White House to get the job done.
 

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Senators Hear from Americans Concerned about the Courts

Senators saw the grass roots energy behind Americans’ commitment to our nation’s system of justice.
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Judicial Obstruction By the Numbers

Today, a few representatives from People For the American Way joined 150 Americans from 27 states at a White House summit to discuss the state of vacancies in the federal courts.

We’ll write more about the summit in later posts, but first, a summary of the problem. PFAW’s graphic designer, Nicole, put together this infographic showing how unprecedented obstruction of judicial nominees has created an unprecedented vacancy crisis in the federal courts, and slowed down President Obama’s effort to bring qualified, diverse judges to the federal bench:

(Click image for larger pdf version of the infographic.)

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Judicial Emergencies Skyrocket

We won't solve the nation's judicial vacancy crisis unless Republicans stop slow-walking qualified nominees.
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Barely Treading Water on Judicial Nominations

The confirmation rate is too low to put a serious dent in the vacancy crisis.
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