Tuesday afternoon, PFAW hosted a special member telebriefing on the continued GOP obstruction of judicial nominees. The briefing featured PFAW’s Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon. They discussed how Republicans’ obstruction has reached staggering levels, despite changes in Senate filibuster rules.
Marge gave a brief background on the issue of GOP obstruction of judicial nominations, explaining how important federal judgeships are for deciding many issues that affect everyday Americans and defining why Republicans are determined to continue obstruction confirmations of judicial nominees. Their underlying goal is to keep as many seats empty as possible so a President Cruz or Rubio can fill them with right-wing ideologues.
She addressed the current narrative that President Obama has had more confirmations at this time than Bush had, and explained that these numbers need to be put in the context of the fact that Obama has had around 70 more vacancies to fill than his predecessor. That means for Obama’s confirmation results to be seen as equivalent to those of President Bush, he would have had to have many more nominees confirmed at this point in his presidency.
Paul began a discussion of some of the choke methods Republicans are employing to block the confirmation of President Obama's nominees to the bench. Paul delineated how all too often, GOP senators do not cooperate with the White House to suggest candidates for nomination, delaying the process from the very beginning. Once nominees are made and are sent to the Senate Judiciary Committee, we have seen GOP Senators delay the hearing by not submitting their blue slips, an unofficial tradition that gives home state Senators an opportunity to express their support for the nominee.
Marge explained ways in which Republicans are delaying the process once nominees are in committee, where the minority is allowed to request one-week delays. To express the magnitude of the obstruction, Marge explained how of the 270 nominees who have had a vote during President Obama's term, only 11 have had their votes held on time.
Once on the Senate floor, the situation doesn't get better as senators are able to filibuster nominees by refusing to give unanimous consent to the simple act of holding a yes-or-no confirmation vote. To offset these delays, Senate Majority Leader Harry Reid has been forced to file for cloture. Since the rules change in November, there have been cloture votes on all the nominees, adding hours of senate time in post-cloture debates (30 hours per circuit court nominee).
Marge highlighted that if all 30 nominees on the floor were voted on today, which is possible, then the number of current vacancies would drop precipitously, down to the level at this point in George W. Bush’s presidency. It is essential that these be voted on now, and that confirmation votes for nominations coming out of committee be voted on expeditiously.
Fielding questions from PFAW members, Marge and Paul discussed particular cases of obstruction like that of William Thomas's nomination in Florida, where Senator Marco Rubio withheld his blue slip in support of the nominee-–one that he himself had recommended in the first place. Members also made the connection between the effect of big money in politics and the motivations for GOP senators to obstruct confirmations, and attempted to find ways in which everyday Americans can make their voices heard to their senators regarding the issues of obstruction in judicial nominations. Paul used the example of the DC Circuit Court fight, where with the activism from people across the country rallying together helped get all the court's vacancies filled.
Marge and Paul, along with PFAW members, emphasized how as activists, we can intervene in the fight to take back our democracy by letting Senators know that average Americans are paying attention, watching how they respond and vote on judicial nominations, and considering who may be pulling their strings. For instance, a caller in Florida wanting to influence Marco Rubio could call his office and ask him to prevent a delay in a committee vote for nominees to fill four emergency vacancies. And everyone, regardless of whether there are vacancies in their state, can call their senators and call for the quick confirmation of the large number of nominees awaiting a floor vote. She also highlighted what is at stake in this mid-term election since the officials we elect today will help confirm the judges that will decide important cases that affect average Americans. For this reason, it is important to have demographic and experiential diversity in the courts so judges making decisions understand the impact of the law on regular Americans.
Last month, the US Senate failed to invoke cloture on the nomination of Debo Adegbile to head the Civil Rights Division at the Justice Department after a right-wing smear campaign that attacked Adegbile for helping provide legal representation at the appellate level to Mumia Abu-Jamal, a convicted murderer, while working at the NAACP Legal Defense Fund. Every Senate Republican and seven Democrats voted to filibuster Adegbile’s nomination, effectively blocking the nomination and throwing out the window the constitutional ideal that all criminal defendants should have access to quality legal representation.
Last week, over one thousand law professors came together to publicly condemn the vote by writing a letter to the Senate where they explain the ramifications of the vote for law students, lawyers, and the legal profession as a whole. The letter – dated April 25, 2014 – states:
[W]e are deeply concerned that the vote and the rationale publicly articulated by a majority of Senators rejecting Mr. Adegbile sends a message that goes to several core values of the legal profession. These include the right to counsel, the importance of pro bono representation, and the importance of ensuring that constitutional protections are afforded to every criminal defendant regardless of the crimes for which they are accused.
As law teachers we are particularly concerned about the disquieting message conveyed to law students and graduates entering the profession who may fear that their engagement with pro bono representation of unpopular clients may imperil their future eligibility for federal government service.
…We believe that the criticism of Mr. Adegbile, based on his representation of a death row inmate, is unjust and inconsistent with the fundamental tenets of our profession. The Sixth Amendment to the United States Constitution guarantees the assistance of counsel to persons charged with crimes, and all accused defendants are entitled to zealous representation by competent counsel.
The highest calling of any lawyer is to ensure that the Constitution is applied fairly and in accordance with the decisions of the U.S. Supreme Court to every defendant.
…The debate surrounding Mr. Adegbile’s confirmation also threatens to undermine the widely-recognized importance of lawyers providing pro bono representation to meet unmet legal needs. Providing representation to defendants on death row is among the most challenging, resource-intensive and critically important pro bono counsel a lawyer can provide. Lawyers engaged in this work should be commended rather than denounced for their hard-work and commitment to ensuring that the protections of the Constitution are extended even to those accused of heinous crimes.
…Finally, as every lawyer knows – including the 57 in the U.S. Senate – we are not our clients. The constitutional right to effective assistance of counsel would be turned on its head if the contrary view were advanced. Indeed, had past candidates for public office been held to the Senate’s unjust standard, our nation would have been deprived of the likes of President John Adams (who defended British soldiers charged with killing Americans in the Boston Massacre), Justice Thurgood Marshall (who defended countless black men on death row in the Jim Crow South), and Chief Justice John Roberts (who represented convicted serial killer John Errol Ferguson).
Simply put, the rule of law cannot succeed if attorneys are judged guilty by association with their clients. In rejecting a qualified nominee for public service based on conduct which reflects the best of our profession, the Senate has done a grave disservice to the legal profession and those who seek to enter it.
Upon returning from a two week recess, the Senate voted today to confirm Michelle T. Friedland to the US Court of Appeals for the 9th Circuit. Notably, Friedland is the 100th female judge confirmed under President Obama.
People For the American Way’s Executive Vice President Marge Baker released the following statement:
“Today’s confirmation is an important step towards addressing the judicial vacancy crisis on the federal bench, particularly in our Courts of Appeals, and it’s an important step towards building a more diverse judiciary. Confirming President Obama’s nominees makes our judicial system work better for Americans who depend on the courts. That’s doubly true in circuit courts which are frequently the courts of last resort for determining issues that affect American families every day.
“Senator Reid should be applauded for moving the confirmation process forward despite the GOP’s unrelenting campaign of obstruction. Since the beginning of President Obama’s administration, Senate Republicans have delayed votes and slowed down the process of filling judicial vacancies with qualified judges. Their campaign of obstruction has increased the backlog of vacancies waiting to be filled and weakened our judiciary.
“Today’s confirmation is a step in the right direction. Filling vacancies in our courts should not be a partisan issue—it should be about the American citizens whom these courts serve.”
The Iowa-based Religious Right group The Family Leader held a forum for Republican US Senate candidates on Friday, at which the group’s view that “God instituted government” figured heavily. In fact, nearly every candidate at the debate vowed that if they were to be elected to the Senate they would block federal judicial nominees who do not follow what they perceive as “natural law” or a “biblical view of justice.”
Bob Vander Plaats, head of The Family Leader, opened the forum by declaring, “At The Family Leader, we believe God has three institutions: It would be the church, the family, and government.”
He warned that policies such as legal abortion and marriage equality would cause God to cease blessing the country. “As we have a culture that runs further and further from God’s principles, His precepts, from God’s heart, it’s only natural consequences that we’re going to suffer,” he said.
“You cannot run away from the heart of God and expect God to bless the country," he concluded.
Several of the candidates echoed this theme during the forum. When moderator Erick Erickson, the right-wing pundit, asked the candidates what criteria they would look for in confirming federal judges, three out of four said they would demand faith in God or adherence to “natural law.”
Sam Clovis, a college professor and retired Air Force colonel, answered that he has “a very firm litmus test” on judges: “Can that judge…explain to me natural law and natural rights?”
Joni Ernst, who is currently a state senator, agreed, adding that federal judges should understand that the Constitution and all of our laws “did come from God” and that senators should “make sure that any decisions that they have made in the past are decisions that fit within that criteria.”
Former federal prosecutor Matt Whitaker argued that neither Clovis’ nor Ernst’s answer had gone “far enough.” He said that he would demand that federal judicial nominees be “people of faith” and “have a biblical view of justice.”
“As long as they have that worldview, then they’ll be a good judge,” he said. “And if they have a secular worldview, where this is all we have here on earth, then I’m going to be very concerned about how they judge.”
This all must have been very pleasing to Vander Plaats, who in 2010 orchestrated the ousting of Iowa Supreme Court justices who had ruled in favor of marriage equality, and who has repeatedly insisted that marriage equality is unconstitutional because it "goes against" the Bible and the "law of nature."
To: Interested Parties
From: Marge Baker, Executive Vice President, People For the American Way
Date: April 11, 2014
Re: Judicial Confirmations Under Bush and Obama — By the Numbers
In recent days, Republicans have made much over the fact that President Obama has had more judicial nominees confirmed than George W. Bush did in his term. That’s unquestionably true, but taken alone, that factoid conceals more than it illuminates about the GOP's unprecedented campaign to obstruct the confirmation of President Obama's judges.
Most importantly, President Obama has been faced with significantly more judicial vacancies than had President Bush. So far, 270 vacancies have arisen since January of 2009. During the same period in the Bush administration, only 202 vacancies appeared. While President Bush had more than filled the vacancies which arose during his presidency, President Obama hasn’t been allowed even to keep pace with vacancies as they arise.
In order to fill those vacancies, President Obama has faced unprecedented obstruction of his nominees, including a record number of filibusters. In fact, more of his nominees to the lower federal courts have been subjected to cloture votes (35) than the nominees of every previous president, combined.
Before they're confirmed President Obama's nominees have been forced to wait much longer for votes after being approved by the Judiciary Committee than President Bush's nominees. The wait times have become so extreme, that President Obama's district court nominees are, on average, forced to wait longer than President Bush’s circuit court nominees.
As a result, Senate Republicans have significantly reduced President Obama's ability to address the judicial vacancy crisis in the courts right now. Currently, President Obama faces significantly more judicial vacancies than President Bush faced at this point in his presidency, including more than 50% more judicial emergencies.
Currently, 31 nominations have cleared the Judiciary Committee and are pending before the Senate, including 14 nominees who would fill seats designated as judicial emergencies. There's no reason for any of these nominations to be delayed, and confirming all of them would bring the vacancy rate roughly in line with the rate we saw eight years ago.
If Republicans are interested in treating President Obama now as President Bush was treated then, they should move quickly to confirm all the nominees currently pending on the Senate floor.
The Senate voted today to invoke cloture on the nomination of Michelle Friedland to the US Court of Appeals for the 9th Circuit. Friedland was first nominated by President Obama on August 3, 2013 to fill a seat designated as a judicial emergency by the Administrative Office of the US Courts.
“Today’s vote is an important step towards addressing our country’s judicial vacancy crisis,” said Marge Baker, Executive Vice President of People For the American Way. “It’s especially important that the Senate move forward to confirm Circuit Court judges, who often have the final say on some of the most important issues that Americans face.”
Friedland’s nomination has been one of many nominations caught up in Republicans’ blanket obstruction of all judicial nominees over the past several months, and President Obama was forced to renominate her this year. After today’s vote, Friedland still faces 30 hours of potential “post-cloture debate,” unless Republicans allow the Senate move forward on the nomination more expeditiously.
“It’s time for the GOP to stop its campaign of obstruction and allow timely, yes-or-no votes on all of the nominees on the Senate’s calendar, and, in particular, the vitally important circuit court nominees,” said Baker. “Despite the recent change in the Senate’s rules, Republicans have continued to obstruct the confirmation of President Obama’s well-qualified judicial nominees. These delay tactics from Republicans don’t just hobble what could be an efficient, effective process; they deprive Americans of the fully functioning justice system they deserve.
“We applaud Senator Reid’s focus on clearing the backlog of these nominees. It’s important that we continue to move forward despite the GOP’s obstruction. Confirming the 31 nominees currently on the Senate’s calendar would fill more than one third of the nation’s current judicial vacancies.”
In an op-ed Sunday, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, addressed critics of his use of blue slips, a committee tradition that Republicans continue to abuse. Under this policy, the chairman asks the Senators from a nominee’s home state to submit a blue slip expressing their support or opposition. The consequences have varied over time, depending on who the chairman has been. Leahy’s practice has been to not hold a hearing unless both senators submit their blue slips saying they support letting the committee process the application. As Senator Leahy points out
The Constitution requires presidents to seek both the “advice and consent” of the Senate in appointing judges to lifetime posts on the federal courts. … When senators return this paper, it is proof that the senators elected to represent that state were consulted and the nominee is likely to be confirmed.
Leahy states he “cannot recall a single judicial nominee being confirmed over the objection of his or her home-state senators,” and affirms the importance of home-state support in moving the process forward.
But Leahy also acknowledges that the “judicial confirmation process in the Senate has grown increasingly difficult,” and that Senate practices that bring principles of the Constitution to life do need “ongoing evaluation to make sure they work as intended. And he reiterates that he “would not rule out proceeding with a nomination if the blue slip is abused.”
Indeed, since his election, President Obama has routinely sought the advice of senators through the judicial nominations process. It has been a hallmark of his presidency. But too many Republicans have refused to engage in a cooperative process, instead seeking the authority to pick the nominee themselves, even if it is someone the president would oppose. When that happens, no nomination is made. Other times, the senators withhold the blue slip indefinitely, often refusing to give a reason why, and sometimes even after they themselves recommended the nominee they are now blocking. The result of this abuse has been the worsening of a serious judicial vacancy crisis.
Chairman Leahy has stressed the importance of blue slips in showing that senators have been consulted by the White House. Taking heed of Leahy’s words, Republicans should be wary of continuing the abuse of the blue slip process to block judicial confirmations. Their continued use of this “silent, unaccountable veto” is a detriment to the judicial process. As GOP obstruction continues through withholding of blue slips despite substantial consultation, judicial nominations grow more cumbersome, and the impracticality of this part of the process becomes clearer.
Matt Barber and Steve Crampton began today's "Faith and Freedom" radio broadcast by attacking Rep. Nancy Pelosi for accepting the Margaret Sanger Award from Planned Parenthood last month, but the discussion quickly got sidetracked into criticism of efforts to outlaw the use of "ex-gay" reparative therapy on minors, with Crampton comparing it to efforts by mental health professionals to promote eugenics in the early 1900s in order to sterilize and eliminate "undesirables":
And the side to the whole eugenics movement that I think still underlies the abortion industry in America is that it was pioneered by and championed by the so-called experts.
In 1909, California adopted laws forcing sterilization of those they deemed unfit. It took some six decades before they stopped the practice, during which time sixty thousand Americans were sterilized involuntarily by the experts. We're talking the California Psychiatric Association, in particular.
Interestingly enough, here we are today at Liberty Counsel litigating against the California psychiatrists and the American Psychiatric Association that so many folks hold in high regard and now they're touting theories about homosexuality rather than eugenics, but the theories are equally devoid of any kind of scientific basis.
And what I want to say to our listeners is beware the experts. So often, it is the experts that get us into the deep, deep weeds and the darkest places of the experience of humanity and so blindly following them can get us into horrific places.
Senate Majority Leader Harry Reid filed cloture yesterday on the nomination of John B. Owens to a seat on the US Court of Appeals for the Ninth Circuit—one that has been declared a judicial emergency and which has been vacant for almost 10 years. This moves forward the Senate judicial confirmations process that has been relentlessly slowed down by GOP obstruction. In an atmosphere of constant delays, it is commendable that Sen. Reid is taking action to get nominees confirmed, especially circuit court nominees.
Because of obstruction by Senate Republicans, nominations for the circuit court have been made particularly cumbersome. As we explained last month, if Senators refuse to provide “unanimous consent” to schedule a vote, Sen. Reid is forced to file a cloture petition to allow a yes or no vote on the nominee. Once cloture is invoked, Senate rules allow the minority to insist on “post-cloture debate”— up to 30 hours for circuit court nominees.
With six circuit court nominees now on the Senate calendar, (including the most recent addition, Fifth Circuit nominee Gregg Costa, who was recommended unanimously by the Senate Judiciary Committee this morning) and more in the pipeline, Republicans can tie the Senate up for 180 hours of needless “post cloture debate” – that is weeks of floor time that could be spent doing something useful. Time is growing short to get them all confirmed by the end of the year. One easy answer is for Senate Republicans to forego their delaying tactics and permit the Senate to both confirm judicial nominees and perform the other important work waiting to be done. Until that happens, Sen. Reid should be applauded for pushing the process forward.