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, email@example.com, (202) 467-4999
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.
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:
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.
The Leadership Conference on Civil and Human Rights organized a call yesterday with Sen. Chris Coons of Delaware and attorneys from Ohio, South Carolina and Arizona to discuss how judicial nominations gridlock in Washington hurts Americans seeking justice around the country.
On Wednesday, Senate Majority Leader Harry Reid reached a deal with Republicans to allow votes on 14 of 22 stalled judicial nominees. The first two of those were confirmed yesterday with overwhelming bipartisan votes.
The deal, while it represents more progress than Senate Republicans were previously willing to allow, still leaves eight nominees without even a vote from the Senate until May at least. Three of these nominees are from Ohio, Arizona and South Carolina.
This procedural gridlock is often portrayed as an inside-the-beltway issue. However, it has a real impact on American seeking justice from our federal courts.
Greg Kuykendall, a Tucson attorney who joined the call, told of a client who had to wait 14 months in jail before a District Court judge with an unmanageable caseload was finally able to review his claim that he was being detained in violation of his constitutional rights. “It effectively made the prisoner spend an additional 14 months in unconstitutional confinement, as a result of the judicial emergency,” Kuykendall said.
Cleveland attorney Michael Meuti told of a Ohio business that had to wait 14 months for a federal judge to review charges that had been brought against it. In the meantime, the business had to endure the uncertainty and cost of having a lawsuit hanging over it.
“Understaffed courts struggle to provide efficient and effective justice,” Meuti said. “When judicial vacancies increase, so do the workloads of each sitting judge. In turn, both individuals and businesses must wait longer for their cases to be resolved and must endure the uncertainties and costs of litigation for a greater period of time. President Obama’s nominees have waited four times longer than his predecessor’s. It is time for the Senate to abandon its obstructionist agenda, which can serve only to make justice harder to obtain for everyday Americans and American companies.”
Armand Derfner, a Charleston, South Carolina attorney, added, “"These nominees are being obstructed for no good reason. They’re suitable, qualified, and many have bipartisan support. The Senate should stop delaying votes to fill these vacancies.”
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.”
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.”
Later this month, the Supreme Court will hear arguments in one of the most closely-watched cases in its history: the challenge to the 2010 Affordable Care Act. But in the weeks leading up to those arguments, another fight will be taking place in the U.S. Senate on an issue that in many ways parallels the health care debate, and offers an even clearer view of what have become the policy priorities of the Republican Party.
Since Obama became president, Republicans in Congress have made a clear and conscious choice to kill any attempts to cooperate with him to create solutions for the American people. They have chosen instead to devote themselves to be the party of opposing President Obama - on every issue, big and small. In doing so, they have thrown out not only the trust of the people who elected them, but many of their own formerly held principles.
Even ideas that originally came from Republicans, once adopted by the president become grounds for all-out partisan attacks. One such Republican idea was the individual mandate, which is now at the center of the legal and political challenges to the Affordable Care Act.
Ironically, the judicial branch - to which Republicans are turning with hopes that the policy they came up with is declared unconstitutional - is also at the heart of another stunning turnaround. Republicans used to talk about the importance of bipartisan cooperation in ensuring a fair and functioning judiciary. But that changed abruptly in January 2009, when the political party of the president changed.
When it comes to health care reform, Republicans have chosen to ignore their previous positions in an effort to stick it to the president.
When it comes to the functioning of the federal courts, they have so far chosen to do the same.
This week, Republicans in the Senate, after three years of obstructing nominees to the U.S. courts -- contributing to a historic vacancy crisis that affects over 160 million Americans -- will have to make the same choice. Senate Majority Leader Harry Reid has announced he will file petitions to end the filibusters of 17 nominees to district courts around the country, most long-stalled and unopposed. These, plus the two Obama nominees who have already been filibustered, represent nearly ten times the number of district court nominees who were filibustered under the last two presidents combined. The cumbersome process to end these filibusters will, if Republicans don't relent, tie up the Senate through early April.
During George W. Bush's presidency, Senate Republicans were near-universal in their condemnation of the filibusters of some of Bush's most extreme judicial nominees. Many went so far as to claim that filibustering judicial nominees was unconstitutional.
Once President Obama moved into the White House, it was remarkable how fast they changed their tune. They went overnight from decrying judicial filibusters, to using them wantonly -- not just to stall nominees to whom they found objections, but to stall all nominees , even those whom they favor. At this point in Bush's presidency, the average district court nominee waited 22 days between approval from the Senate Judiciary Committee and a vote from the full Senate. Under President Obama, the average wait has been more than four times longer - over three months.
This is gridlock for gridlock's sake: once Republicans allow them to come to a vote, the vast majority of the president's nominees have been confirmed with overwhelming bipartisan support, demonstrating that the opposition to these nominees was never about their qualifications.
This is more than an inside the beltway partisan game -- it has helped to create a historic vacancy crisis in the federal courts. Approximately one in ten federal courtrooms today sits empty because of Senate inaction. These vacancies create unmanageable workloads for sitting judges, which in turn cause unacceptable delays for Americans seeking their day in court. The Republican Party has been so intent on obstructing President Obama's agenda that they've been willing to sacrifice the smooth functioning of America's courts
. The health care debate highlights the importance of appointing judges who place their duty to the Constitution over a partisan agenda. But it also crystallizes the agenda of opposition that has caused the Republican Party to go off the deep end. When a party's only principle is to be opposed to the other party's agenda, it's the American people who end up paying the price.
On Monday, Senate Majority Leader Harry Reid filed cloture petitions to end GOP filibusters of 17 district court nominees, an extraordinary move brought on by unprecedented Republican obstruction. The Senate GOP started immediately to try to spin the story to try to cover for the gridlock they had created. Here are the five main Republican talking points on the judicial obstruction showdown and the facts that rebut them:
GOP Talking Point #1: Senate Democrats have invented this conflict to make Republicans look bad. This is a little skirmish about timing that’s been blown out of proportion.
Sen. McConnell: “Rather than try to manufacture gridlock and create the illusion of conflict where none exists, why don’t we demonstrate we can kind of get something done together?”
Sen. Alexander: "This is a little disagreement that we have here between the Majority leader and the Republican leader on the scheduling of votes on district judges. It's not a high constitutional matter. It's not even a high principle. It's not even a big disagreement.”
GOP Talking Point #2: The GOP’s obstruction is a direct response to President Obama’s recess appointments.
Sen. Lee: "After the president made four unconstitutional appointments, we could no longer sustain the same level of cooperation.”
GOP Talking Point #3: Some of the filibustered nominees haven’t been on the calendar all that long, what’s the hurry?
Sen. Alexander: “We have 17 district court judgeships that have been recommended by the Judiciary committee. They could be brought up by the majority leader. He has the right to do that but of those 17, six of them - six of them - have been here for less than 30 days. They just got here.”
GOP Talking Point #4: Senate Republicans are floating plans to vote “present” on the 17 cloture petitions, thus continuing to stall the nominees while not being tagged with a “no” vote.
Sen. Cornyn: “Sen. John Cornyn (R-Texas) told POLITICO he thinks Republicans will vote ‘no’ or ‘present’ on the cloture votes on judges and won't allow Democrats to ‘jam’ them.”
GOP Talking Point #5: The Senate has more important issues to focus on.
Sen. McConnell: “It could be that is precisely what my friend the Majority leader has in mind, to try to make the Senate look like it's embroiled in controversy where no controversy exists. So my suggestion is, why don't we do first things first.”
Press Contact: Miranda Blue, (202) 497-4999, firstname.lastname@example.org