Fair and Just Courts

A Small, But Important, Step Towards Common Sense in Judicial Confirmation Process

Last week, in advance of a Senate Judiciary Committee vote on six Arizona district court nominees, senior legislative counsel Paul Gordon asked if Arizona Senators Jeff Flake and John McCain would be able to convince their Republican colleagues to break what has become their practice of routinely delaying nominees’ votes. Since 2009, only five of President Obama’s judicial nominees had been allowed to have their committee votes cast without delay. Gordon urged the Senators to forgo this obstruction, especially given the enormous caseload in Arizona that is impeding the operation of the Arizona district court that has 6 of its 13 seats vacant. 

Yesterday, in a departure from their practice, the Committee actually voted on the nominees. 91. 5 KJAZZ reported:

“The liberal advocacy group People for the American Way called this a step toward fixing the judicial vacancy rate in Arizona, but noted that there are 28 people awaiting confirmation ahead of these nominees.”

Executive vice president Marge Baker also commented on the turn of events in an interview with Cronkite News:

“It wasn’t sustainable to keep delaying this process, and it seems that Arizona senators finally heeded reason. Arizona has had a terrible judicial vacancy rate. This is an important step towards fixing it.”

This was a relief for the state of Arizona, as well as a nice change of pace for Senate Republicans. But as a judicial vacancy crisis continues in Arizona and across the country, the work is far from over.

PFAW

Flake and McCain's Next Steps for AZ Nominees

Will Arizona's senators try to convince their GOP colleagues to eliminate the bottleneck of stalled nominees who are ahead of six Arizona nominees?
PFAW

Grassley Says Every Senator Has Right to Vote on Nominees He Filibustered

After trying to block the Senate from holding confirmation votes, Grassley says each senator had a right to a recorded vote on those nominees.
PFAW

Reid Calls Out Republicans on Obstruction of Judicial Nominees

On Tuesday, Senate Majority Leader Harry Reid (D-Nev.) responded to Sen. Chuck Grassley’s (R-Iowa) absurd claim that this Congress has done well in confirming judicial nominees. In fact, Republicans have not consented to even one judicial confirmation vote since November. The few votes that have been held since then have been over GOP filibusters. Unfortunately, Senate rules allow them to demand hours of needless “post cloture debate” after every cloture vote, so it could take weeks and weeks of Senate floor time to get through all the nominees waiting for a simple yes-or-no vote.

Reid was quick to voice that the confirmation process has been unnecessarily delayed by GOP obstruction:

Everyone knows that we are in this situation because of Republicans slow-walking every nomination—every nomination. There is no reason, no reason whatsoever that we are having votes on cloture on these judges.

“It is a waste of the taxpayers’ time to go through the process we’ve been going through.

Reid, aware of the prolonged time they will spend clearing the backlog due to these procedural delays, promised that they will get through filing cloture on all of the nominees.

If that’s what the Republicans want us to do, then that’s what we’ll do. The American people will see this colossal waste of time that we’ve been going through.

PFAW

Rubio and Sessions Can Prevent Delay of Critical 11th Circuit Vote

Get ready. There’s more Republican obstruction on the way.

The Senate Judiciary Committee has scheduled a vote on 11th Circuit nominee Robin S. Rosenbaum for this Thursday, which is an important step forward in the fight to address our judicial vacancy crisis. Fully a third of the 11th Circuit’s twelve active judgeships are currently vacant, and all four of its empty slots have been declared judicial emergencies by the Administrative Offices of U.S. Courts.

The vacancy crisis in the 11th Circuit is so bad that the court’s chief judge, Edward Carnes, issued an order in December temporarily suspending the standard rule that at least two judges on a three-judge 11th Circuit panel must be members of that court. That means that going forward, two of three judges on these panels could be visiting from someplace else, potentially outvoting the one 11th Circuit judge. It is vital that Judge Rosenbaum be confirmed in a timely manner. And that starts with a timely committee vote.

But it’s unlikely that’s enough reason for GOP Senators to drop their campaign of endless delays for judicial nominations.

Republicans are expected to delay that committee vote using a procedural tactic that they have deployed against all but five of President Obama’s judicial nominees.

That is, unless Sen. Marco Rubio or Sen. Jeff Sessions steps in.

Rosenbaum is from Florida, which gives Rubio a special responsibility to urge Republican senators on the committee not to delay the vote. It is a chance for him to prioritize his constituents over politics. Similarly, Sessions, who represents a state (Alabama) covered by the 11th Circuit, also has a unique responsibility, as a member of the Judiciary Committee, to avoid such needless delay.

Will either Rubio or Sessions step up and help move the process in a more functional direction? We’ll learn on Thursday, but if past events are a predictor of future behavior, I wouldn’t hold my breath.
 

PFAW

Vander Plaats: Marriage Equality 'Runs Contrary to Liberty,' Defies Declaration of Independence

Iowa Republican gadfly Bob Vander Plaats attacked Rand Paul on yesterday’s Steve Deace program over the Kentucky senator’s silence on a federal court ruling striking down his state’s same-sex marriage ban.

Vander Plaats, head of The Family Leader, mused (probably correctly) that if Newt Gingrich were in Paul’s place, he would have called for defunding the federal district court that ruled in favor of marriage equality.

If Paul were truly “about liberty,” Vander Plaats said, he would be taking the lead to punish the Kentucky judge who struck down the marriage ban, a decision that Vander Plaats insisted “runs contrary to liberty” and defies the Declaration of Independence.

Vander Plaats:  If another good friend of ours, Newt Gingrich, was in his position from the state of Kentucky, I can almost guarantee what Newt’s response would have been. It would have been, ‘We need to defund that court, we need to defund that judge. The Congress still holds the power of the purse. If we have courts, if we have judges operating outside of their constitutional authority, let’s pull their meal ticket away.’



It’s too bad that a senator like Ted Cruz and a senator like Mike Lee have to actually step up for the state of Kentucky when their own senator, Rand Paul, should be doing that.

Deace: What should Rand be doing instead of what he is doing right now, which is basically nothing? What shouldhe be doing instead?

Vander Plaats: Well, I think one thing is that he needs to step up to the microphone. This is his state, this is Kentucky. This is something that runs totally against who he is. I mean, he’s about liberty. And if it’s about liberty, and if you have a judge usurping the will of the people of Kentucky, that runs contrary to liberty. If you believe marriage is a state rights issue and the state of Kentucky says, ‘This is what marriage is to us, one man and one woman, clearly defined,’ then you better stand up to that state rights issue. If you believe what you say you believe, that marriage is foundational and it’s between a man and a woman, which is what he says he believes, then you got to stand up for that, because that’s the law of nature, that’s the law of nature’s God, that’s the Declaration of Independence, which this whole country was founded on.
 

Senate to Vote Today on Four Federal District Court Nominees

The Senate is scheduled to vote to end filibusters and then to confirm four federal district court nominees tonight and tomorrow morning, two for the Northern District of California, one for the Eastern District of Arkansas, and one for the District of Connecticut. All four of these nominees were thoroughly vetted and approved by unanimous voice vote by the Judiciary Committee last year. They should have and could have been confirmed months ago. (In contrast, George W. Bush’s confirmed district court noms only waited about a month on average between committee approval and confirmation.) However, because of Republican obstruction, all four nominees have waited months for a simple confirmation vote. And Senate Republicans are indicating that they won’t stop their obstruction anytime soon.  In fact, it looks like they are willing to waste weeks of time in “post-cloture debate” on these and subsequent nominees.

Judge Jeffrey Alker Meyer of Connecticut has been waiting for a confirmation since he was first approved by the Senate Judiciary Committee on September 19. Judge James Maxwell Moody, Jr., of Arkansas has been waiting since November 14. The two nominees from Northern California, Judge James Donato and Judge Beth Labson Freeman, have both been waiting since October 31st.

This frustratingly slow process is the result of layers of delaying tactics by GOP senators. Republicans refused to hold votes on these nominees for months, and now that they are being called on their obstructionism through filibuster-ending cloture votes, they’re making the votes take as long as possible by demanding that each take hours of “post-cloture debate.” This is especially ridiculous for nominees whom the Republicans actually support. Not only is this delaying confirmation of judges in these particular states; it’s also delaying nominees in other states waiting in line for their turn, including many for posts that have been deemed “judicial emergencies.” This delaying tactic from Republicans not only slows what should be a simple process, it deprives these states’ constituents the fully functioning justice system they deserve.

PFAW

Will McCain and Flake Let GOP Obstruct AZ Nominees?

Flake and McCain should not let their GOP colleagues needlessly delay a committee vote on nominees to fill six judicial emergencies in Arizona.
PFAW

Burr's Blue Slip Abuse Continues

North Carolina's Sen. Richard Burr still won't say why he is blocking Jennifer May-Parker's judicial nomination.
PFAW

Schlafly: Resist Windsor Like Dred Scott

In an interview with WorldNetDaily today, Eagle Forum founder Phyllis Schlafly compared the Supreme Court’s decision in U.S. v Windsor to the infamous Dred Scott case, arguing that the landmark marriage equality decision should not be used as legal precedent.

Attacking President Obama for his “dictatorial attitude” and “judges who think they can do anything they want,” Schlafly urged Americans to simply ignore the legal precedent set by gay rights decisions. Schlafly recalled how Republicans in the 1850s argued that the Dred Scott decision shouldn’t set a binding legal precedent. “We should reject some of these laws that try to write into the Constitution gay marriage, which is not a constitutional right,” she said.

Unfortunately for Schlafly, courts across the country are already using Windsor as precedent for striking down anti-equality laws.

Well, I’m not really a predictor, but I think the American people have got to stop this dictatorial attitude of Obama, who thinks he can do anything by executive order and the judges who think they can do anything they want by calling it a ‘living Constitution.’

Remember Abraham Lincoln, when the courts handed down probably the worst decision in history, the Dred Scott case. And Lincoln was very good, he said, well, okay, we have to accept what the court did for poor old Dred Scott but we don’t have to accept it as the law of the land, we don’t have to accept it as binding in other cases, or else we will be subservient to ‘that imperial judiciary.’ He just rejected it. And we should reject some of these laws that try to write into the Constitution gay marriage, which is not a constitutional right.

GOP Blockade of Unopposed Ark. Judicial Nominees Disrupts Local Election

Chuck Grassley tries and fails to justify his party's obstruction, which is complicating an Arkansas state judicial election.
PFAW

Historic Nomination: Diane Humetewa Would Be First Native American Woman On Federal Bench

A historic nomination by President Obama is being considered by the Senate Judiciary Committee: Diane Humetewa is poised to become the first Native American woman on the federal judiciary. Humetewa is a highly qualified nominee with bipartisan support. She was nominated by President Obama with Senator McCain ’s recommendation to serve on the federal judiciary and was previously appointed by President Bush as the U.S. Attorney for the District of Arizona.

The Senate Judiciary Committee had Humetewa’s confirmation hearing on January 29, and her committee vote has been scheduled for this Thursday, February 13. But there is already a growing line of nominees stalled on the Senate floor unable to get a confirmation vote. On January 29, 29 nominees were stalled, and by February 6 the waiting list grew to 32 nominees who are stuck at Senate floor step in the confirmation process. Humetewa and her five fellow Arizona nominees will be added to the end of this already unacceptably long line.

In the meantime, Arizona needs qualified judges like Humetewa to fill its six federal judicial vacancies

If Diane Humetewa is confirmed, she will be the:

First Native American woman to serve as a judge in a federal court;

Third Native American to be a federal judge; and

Only Native American in active service on the federal bench.

Diversity on the federal bench is always important, and Indian legal advocates and tribal leaders have emphasized the need for federal judges who understand Indian Law in particular.

Many Americans know little more about the complexities of Indian tribal laws—and their unique relationship to state and federal laws. Indian sovereign authority, recognized by federal law, extends to the Indian tribal courts that adjudicate Indian affairs-related matters. Some law firms have a specialized practice area in Indian law. Some law schools, such as Arizona State University’s Sandra Day O’Connor College of Law where Humetewa is a professor, have an Indian legal program “to promote an understanding of the differences between the legal systems of Indian Nations and those of the state and federal governments.”

“Indian legal experts have long said that tribal law gets shortchanged in the federal legal arena because so few judges are well-versed and experienced in it. This is one reason why federal cases are often harmful to tribal and Indian interests, according to many tribal analyses,” reported Indian Country Today after Republican Senators blocked Avro Mikkanen, a Native American previously nominated by President Obama to the federal judiciary.

The National Congress of American Indians applauded the nomination of Diane Humetewa and particularly noted her firsthand experience in federal Indian law. Humetewa’s Indian law background includes her work as an attorney on the U.S. Senate Indian Affairs Committee and an Appellate Judge on the Hopi Appellate Court.

This is an important nomination for which President Obama—and all Americans—should be proud. The Judiciary Committee should act expeditiously on this opportunity to make this federal judicial nomination a historic confirmation. That means that Republicans should not demand a needless delay in the committee vote as they have done in all but five cases since Obama became president.  It also means the full Senate should finally be allowed to hold confirmation votes on the 32 nominees ahead of Humetewa and her fellow Arizonans.

PFAW

The Senate Could Cut Judicial Nominations Backlog in Five Minutes…or Five Weeks

On January 13, the Senate confirmed Judge Robert Wilkins to sit on the U.S. Court of Appeals for the D.C. Circuit. So far, despite a growing backlog of judicial nominees, he is the only judge to have been confirmed this year.

There are currently 96 vacancies in federal courts across the country. Thirty-nine of them have been officially designated “judicial emergencies” by the Administrative Office of U.S. Courts, indicating that there are too few judges available to handle the court’s workload. This isn’t a built-in feature of the judicial system. In fact, the Senate could cut the judicial vacancy rate by one third today.

There are 32 federal judicial nominees who have been approved by the Judiciary Committee and are waiting for Senate confirmation votes – enough nominees to fill one-third of the country’s judicial vacancies and reduce the number of judicial emergencies by a quarter. All but three nominees cleared the Judiciary Committee with strong bipartisan support, most unanimously. The Senate could confirm all 32 in an afternoon if Republicans would agree to hold simple yes-or-no confirmation votes on their nominations. They could even confirm all 32 in less than five minutes by holding a unanimous consent vote.

But Senate Republicans still seem to be uninterested in confirming nominees to carry out the business of the nation’s courts, even in the many cases where nominees have been recommended and supported by Republican senators.

Since the Senate was forced to change the rules of the filibuster in response to Republican intransigence, the GOP has retaliated by obstructing nominations in other ways. One of these has been demanding that each confirmation vote take the maximum amount of time possible: Senate rules allow for “post-cloture debate” after a filibuster has been broken – 30 hours of floor time for appeals court nominees and two hours for district court nominees. If Republicans forced the Senate to take the  maximum amount of time on all 32 nominees currently waiting for votes, it would take the Senate 204 hours to clear the backlog.

Those 204 hours would add up to five weeks of full-time work: five weeks in which the Senate wouldn’t be able to do anything else – not immigration reform, not a debt ceiling deal, not an update to the Voting Rights Act.

The Senate could use five weeks of its time this year to confirm judicial nominees. Or, Senate Republicans could agree to confirm all 32 nominees in five minutes, cut the number of judicial vacancies by a third, and move on to other business.

PFAW has launched a petition to urge Senators to address the judicial nominations crisis and stop the obstruction of judicial nominees .

PFAW

Liberty Counsel: Obama 'Destroying The Judiciary' With Black, 'Practicing Homosexual' Judicial Nominee

This week, President Obama nominated five people to federal judgeships in Florida and New Jersey. Three of these nominees are already judges; two are accomplished attorneys. But what is more relevant to the right-wing Liberty Counsel is that, according to the American Family Association’s OneNewsNow, “among the nominees are four African Americans, one of them homosexual.” (That's not actually true: one of the nominees is African American, one is Latino, and three are white).

Liberty Counsel head Mat Staver told OneNewsNow today that these judicial picks show “ideological bankruptcy” on the part of a president who is “destroying the judiciary.”

"So he gets a black man, who is a practicing homosexual, and now he wants to put this individual in an appointment for life on the federal bench," Staver lamented, referring apparently to Darrin P. Gayes, a state circuit judge in Florida who Obama nominated to a federal district court.

At no point in the article does Staver or OneNewsNow touch on the nominee’s qualifications, other than to note vaguely that “all five nominees are considered liberals.”

Among the nominees are four African Americans, one of them homosexual, and the final one is white.

Mat Staver, who heads Liberty Counsel, tells OneNewsNow the president is reaching out to two communities.

"So he gets a black man, who is a practicing homosexual, and now he wants to put this individual in an appointment for life on the federal bench," Staver advises.

He refers to the situation as "ideological bankruptcy."

Why?

President Obama is "destroying the judiciary because, when he leaves office in 2016, these judges will be around for 20 to 40 years," says the Liberty Counsel attorney. "That is going to be a bad legacy that Obama will leave behind that we'll all have to deal with in the aftermath."

Earlier this year, Florida Sen. Marco Rubio succeeded in torpedoing the nomination of William Thomas, a Florida state judge who was also openly gay and African-American. Rubio also blocked another African-American nominee, Brian Davis, for months before local activists pressured him to let the nomination go forward.

While the GOP Fiddles, Judicial Emergencies Mount

A second emergency has been declared in Michigan, where four qualified nominees should have been confirmed last year.
PFAW

GOP-Created Nominees Bottleneck Grows

GOP refusal to allow any confirmation votes may force the Senate to devote weeks in needless "post-cloture debate."
PFAW

VT and VA Senators Move Quickly to Fill Judicial Vacancies

Senators who timely recommend judicial nominees to the White House help America's courts function effectively.
PFAW Foundation

Wisconsin Marriage Equality Lawsuit and the Judicial Vacancy Crisis

In the Western District of Wisconsin, one of the two active federal judgeships has been vacant for five years.
PFAW

Rubio Unconvincingly Explains Why He Blocked Openly Gay African-American Judicial Nominee

Earlier this month, the White House returned to the Senate 54 federal judicial nominees who Senate Republicans had refused to vote on in the previous year. But one nominee was conspicuously absent from that list: Judge William Thomas, a Florida state judge who had been nominated to sit on a federal trial court.

At first, Thomas’ nomination seemed like a slam dunk: He is an experienced, respected judge who was nominated in 2012 with the support of both of Florida’s senators, Democrat Bill Nelson and Republican Marco Rubio. He also would have been the first openly gay black man to sit on the federal bench.

Then, mysteriously, Rubio changed his mind. Taking advantage of a Senate Judiciary Committee policy that allows any senator to block a committee hearing on any nominee from his or her home state, Rubio unilaterally refused to allow a hearing on Thomas. For months, the senator refused to explain why he was blocking Thomas’ nomination, until finally this summer a spokesperson cited “questions about [the nominee’s] judicial temperament and his willingness to impose appropriate criminal sentences.”

Rubio’s office provided two examples of instances in which they believed that Thomas didn’t impose “appropriate criminal sentences.” In both cases, Thomas imposed the highest sentence sought by the prosecution; in both cases, prosecutors praised his handling of the trials. Rubio's staff also claimed that in one of those cases, a grisly murder trial, Thomas “broke down in tears” when sentencing the defendant to death; news reports make clear that the judge's tears came when he was describing the brutal crime. As Chris Hayes put it, none of these complaints “pass the smell test.”

Now, finally, Rubio himself has gone on the record for the first time about why he blocked Thomas’ nomination. In an interview with Michael Putney, political reporter for the Miami-area Local 10 news, Rubio, looking visibly uncomfortable, repeats his office’s talking points about the two criminal cases they allege Judge Thomas imposed insufficiently harsh sentences in. “We are looking for judges that can accurately apply the law, particularly at the federal level,” Rubio said, never quite explaining how Thomas failed to do that.

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This isn’t the first time that Rubio has blocked a Florida judicial nominee for less than convincing reasons. Rubio similarly changed his mind about Florida nominee Brian Davis – who is also African-American – at the behest of Sen. Chuck Grassley . Under pressure from local activists, Rubio eventually changed his mind again and allowed Davis’ nomination to go forward.

As Hayes said, it seems like the most likely explanation is that Judge Thomas was merely an “innocent bystander” in Rubio’s desperate race to win back the right-wing support he lost during his short-lived advocacy for immigration reform – an effort that so far isn’t panning out so well.

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