WASHINGTON – Four years into President Obama’s presidency, he has yet to have a single judge confirmed to the hugely influential Court of Appeals for the D.C. Circuit. This lapse, caused initially by a slow start from the administration but perpetuated by a blockade of obstruction in the Senate, threatens to hinder progressive advances for years to come, argues a new report from People For the American Way.
The report, AMERICA’S PROGRESS AT RISK: RESTORING BALANCE TO THE DC CIRCUIT COURT OF APPEALS, can be found here: http://www.pfaw.org/media-center/publications/america-s-progress-risk-restoring-balance-dc-circuit-court-appeals
“The D.C. Circuit is the most important court most Americans have never heard of,” said Marge Baker, Executive Vice President of People For the American Way. “The D.C. Circuit’s judges have the final word on scores of federal laws each year, from air pollution controls to financial regulations to workers’ rights. Republicans have long understood this, and have packed the court with far-right ideologues who threaten to hold back American progress for decades to come. And they have so far blocked confirmation of judges who would bring any balance to this court."
President Obama is the first president since Woodrow Wilson to fail to have a single nominee confirmed to the D.C. Circuit during his first full term in office, despite the fact that four of the eleven seats on the court are now vacant. His first nominee to the court, the indisputably qualified Caitlin Halligan, was twice blocked by Senate Republicans for reasons widely recognized as spurious.
As a result, the D.C. Circuit continues to be dominated by judges pushing a right-wing ideology long rejected by the American people. The right-wing majority of the D.C. Circuit has continuously sought to dismantle progressive efforts to defend consumers, protect public health, and ensure the rights of workers. Recent D.C. Circuit decisions highlighted in the report include:
“President Obama has a chance in his second term to restore ideological balance to the D.C. Circuit,” added Marge Baker. “It is critically important that he do so. Otherwise, D.C. Circuit will continue to stand in the way of progressive reforms -- reforms chosen by American voters -- and threaten to roll back decades of hard-won protections for working people and consumers."
Chris Kang, Senior Counsel to the President, notes on the White House blog that today markes the one-year anniversary of the day Third Circuit nominee Patty Shwartz was first approved by the Senate Judiciary Committee. That means that Shwartz, an experienced and respected attorney, has been waiting a full year simply for an up-or-down vote from the Senate. The ABA panel that evaluates the qualifications of judicial nominees unanimous gave her its highest possible rating. Not surprisingly for someone of her caliber, she has the strong support of Democrats and Republicans alike, including New Jersey Gov. Chris Christie.
Kang writes that Shwartz’s experience is sadly not unusual in a Senate that’s been hamstrung by an obstructionist Republican minority:
Unfortunately, the delay for Judge Shwartz is not unique. Last week, my colleague wrote about Judge Robert Bacharach, who was recommended to the White House by one of his Republican home state Senators, but waited 263 days for a floor vote before being confirmed 93-0. And on Monday – after 347 days of delay -- the Senate will consider the nomination of Richard Taranto to serve on the U.S. Court of Appeals for the Federal Circuit.
Overall, President Obama’s judicial nominees wait an average of 117 days on the Senate floor for a vote -- more than three times longer than President Bush’s judicial nominees, who waited an average of only 34 days. The Senate must promote the administration of justice by returning to the prompt consideration of judicial nominations. It should consider Judge Shwartz’s nomination without further delay, as well as the fifteen district court nominees awaiting votes. Yesterday, the Senate Judiciary Committee unanimously approved five district court nominees. There is no reason they – and the others approved before them – should not be confirmed within 34 days.
The topic of discussion on Sandy Rios’ American Family Radio program Wednesday was diversity among federal judicial nominees. The Washington Post published a story over the weekend detailing President Obama’s largely successful effort to appoint more women, people of color and openly LGBT people to federal judgeships. The voice of dissent in the article was that of the Committee for Justice’s Curt Levey, who told the Post that the White House was “lowering their standards” in nominating nonwhite judges. So naturally, Rios invited Levey on as a guest and explained to him why she disapproves of President Obama’s diverse judicial nominations.
In particular, Rios disapproves of Obama’s Supreme Court nominees, Sonia Sotomayor and Elena Kagan, respectively the third and fourth women ever to sit on the high court. Sotomayor and Kagan, Rios says, have been forgetting their place and behaving “rudely,” “interrupting” and “speaking inappropriately” to, of all people, Justice Antonin Scalia.
While Levey correctly notes that “Scalia can give it out as well as take it,” he agrees with Rios that Sotomayor, the Supreme Court’s first Latina justice, “has occasionally, at least, stepped over the line.” In particular, he says Sotomayor – who he once accused of supporting “violent Puerto Rican terrorists” -- “sort of lost it” during arguments on the Voting Rights Act, when she contradicted Scalia’s stunning assertion that the law represents a “perpetuation of racial entitlement.”
In fact, while Scalia’s bombast provoked audible gasps in the hearing room, Sotomayor waited several minutes before calmly asking the attorney challenging the Voting Rights Act, “Do you think that the right to vote is a racial entitlement in Section 5?"
Later, Rios, with an impressive lack of self-awareness, marvels that progressive groups criticized Scalia for his remarks. “Groups on the left,” Levey responds, “shall we say, like to personalize things.”
Rios: I read an article that Sotomayor and Elena Kagan, at least this article was intimating that they are behaving in a – these are my words – sort of rudely on the bench, to Scalia and to others, interrupting, speaking inappropriately. Have you observed that? Do you know what I’m talking about and is that true?
Levey: Um, yeah. I mean, you know, Scalia can give it out as well as take it, but yeah, Sotomayor has gone over the line a number of times. Most recently in the Voting Rights Act case, which was just last week, where, you know, Scalia had the nerve to speak the truth and refer to the Voting Rights Act as “racial preferences,” which of course is what it’s become by guaranteeing that there be minority districts formed, minority congressional districts. And, you know, Sotomayor sort of lost it when Obama [sic] said that, interrupted and you know, basically made fun of Scalia’s comment. So yeah, I think they have the right to be aggressive up there, but Sotomayor has occasionally, at least, stepped over the line.
Rios: And on the Voting Rights Act and Scalia’s comments, you know, there were demonstrators at the Court last week, hundreds of them, demonstrating against Antonin Scalia. I don’t remember that happening. I don’t remember a Supreme Court justice – doesn’t mean it hasn’t happened – but I don’t remember it being a subject of public demonstrations.
Levey: No. Typically they will, you know, they’ll, protestors at the Supreme Court will focus on issues, not justices. But you know, that changed of late. There’s been in the last two years a lot of, you know, progressive groups have gone personally after Scalia and especially Thomas and his wife. But you know, we see that in so much of politics, that groups on the left like to, shall we say, personalize things.
Rios: Yeah, as like in Alinsky, yes, personalize and target, yeah, so we are seeing some very new things and actually pretty dangerous I think.
Earlier in the program, Rios and Levey lamented the fact that President Obama has had more openly LGBT people confirmed to the federal bench than all of his predecessors combined. Echoing right-wing arguments made against Romney advisor Richard Grennell, who was forced to resign last year after less than a month on the job, Rios claimed she didn’t mind that the president was appointing gay people to federal judgeships, but that they are “activists who are trying to change the law.”
Levey: You know, I don’t have any problem with him nominating gay and lesbian nominees. The problem is that they should be gay and lesbian nominees who respect the Constitution. You know, there are…
Rios: I don’t disagree, Curt, just for the record, I don’t disagree with that. It’s the activists, activists who are trying to change the law that I will have trouble sitting on the bench.
Levey: Exactly. He’s not appointing, you know, conservative or even moderate, you know, gay Americans, he’s appointing very radical gay Americans. And, you know, again, it’s not so much any individual nominee as it is the pattern here. Of the 35 or so nominees who are pending now, only six are straight white males, even though about half the legal profession is straight white males. So, do straight white males have some, you know, right to a certain number of seats? Of course not. But if you were doing it in a balanced way without any preference for minorities of various types, then you’d probably wind up with about 17 or 18 of those 35 being straight white males. The fact that there’s only six tells us that there’s a system of preferences going on.
Back in December, The New York Times’ Linda Greenhouse wrote a great article explaining how the National Rifle Association has worked in concert with Republican senators to oppose many of President Obama’s federal judicial nominees – usually without anything close to a legitimate reason. The NRA’s “symbiotic relationship with the Republican Party,” Greenhouse wrote, led the group to oppose judicial nominees like Sonia Sotomayor, who had next to no record on the Second Amendment, and the party to chip in when the NRA didn’t like a nominee.
It is that symbiotic relationship that succeeded in sinking the nominations of two highly qualified women to federal courts this week. Both were unquestionably qualified and well-respected in legal circles. The NRA and the Senate GOP went after both for completely unfounded reasons.
Caitlin Halligan was President Obama’s nominee to fill one of four vacancies on the hugely influential Court of Appeals for the D.C. Circuit. Never mind that she had broad bipartisan support and sterling credentials. She had once represented a client, the state of New York, in a lawsuit against gun manufacturers. Back when John Roberts was being considered for the Supreme Court, Senate Republicans said that judicial nominees shouldn’t be held responsible for positions they took as lawyers on behalf of clients. But no matter. Senate Republicans twice voted to filibuster her nomination – most recently on Wednesday – never even allowing her an up-or-down vote.
Then today, Nevada District Court nominee Elissa Cadish withdrew her nomination over one year after she had been selected by President Obama. Her story was similar. Filling out a questionnaire in 2008, Cadish stated that under then-current law, the constitutional right to bear arms didn’t apply to individual citizens. She was correct. Two months later in a 5-4 opinion, the Supreme Court established for the first time that the Second Amendment does contain that right. Cadish made clear that she understood, and would follow, the new Supreme Court precedent.
But no matter. The NRA targeted Cadish and Nevada Sen. Dean Heller used a little-known Senate practice to keep her from ever even getting the chance to explain her views in front of the Judiciary Committee. Under committee procedures used by Chairman Patrick Leahy as a courtesy to his colleagues, a nominee is not granted a hearing unless both of her home-state senators give permission in the form of a “blue slip.” Heller simply refused to sign the blue slip for Cadish, thus single-handedly sinking her nomination.
The flimsiness of the arguments against Cadish and Halligan, and the fact that much of the opposition took place behind the scenes (in the case of Cadish without even a public hearing), betrays the real reason the NRA and the GOP were working to keep these women off the federal bench. They just don’t want President Obama to be nominating federal judges.
WASHINGTON – Today, Nevada judge Elissa Cadish withdrew her nomination to sit on the U.S. District Court for the District of Nevada, more than one year after President Obama first nominated her to the position. Despite her sterling qualifications, Cadish was never even granted a hearing before the Judiciary Committee because Nevada Sen. Dean Heller refused to give permission for her nomination to move forward.
Earlier this week, the nomination of D.C. Circuit Court of Appeals nominee Caitlin Halligan was blocked by Senate Republicans under similar circumstances. Halligan and Cadish both faced unfounded attacks from the gun lobby’s leadership, Halligan for a position she took on behalf of a client and Cadish for correctly describing the state of Second Amendment law before the Supreme Court’s District of Columbia v. Heller decision. Both have clearly stated that they understand and would follow Supreme Court precedent on gun rights.
“Senate Republicans and the gun lobby have worked hand in hand to keep these two exceptionally qualified women off the federal bench,” said Marge Baker, Executive Vice President of People For the American Way. “Neither Cadish nor Halligan has displayed character or ethics problems let alone any sort of extreme ideology like that they were accused of. Yet Halligan was never allowed an up-or-down vote from the Senate, and Cadish never even had the opportunity to answer senators’ questions on her record before the Judiciary Committee.”
“The sinking of these two nominees shows just how far the Senate GOP and the gun lobby are willing to go, and how badly they are willing to stretch the facts, in order to keep President Obama’s nominees off the federal bench,” Baker added.
WASHINGTON – An effort to end the Republican filibuster of DC Circuit Court of Appeals nominee Caitlin Halligan fell short in a 51-41 vote in the Senate today.
Marge Baker, Executive Vice President of People For the American Way, issued the following statement:
“Senate Republicans have once again decided to put their own partisan interests above the will of American voters and the health of our system of justice. Caitlin Halligan is an exceptionally qualified, widely respected and unquestionably mainstream nominee. But a minority of U.S. senators, egged on by conservative activists and a party leadership with their own narrow agendas, have cherry-picked and misrepresented her record in order to keep her off the federal bench.
“Let’s call the filibuster of Halligan what it is: a politically-motivated attempt to keep President Obama’s nominee off the second highest court in the country. Four years into Obama’s presidency, more than one-third of the DC Circuit’s seats are vacant and the president has yet to have a single nominee confirmed to the court. In the meantime, the court continues to be dominated by far-right Republican-appointed judges who have pushed an extreme right-wing agenda on issues including environmental protection, workers’ rights and public health. This is not a coincidence.
“The American people have twice elected President Obama, yet a minority of U.S. senators continues to place a stranglehold on his judicial nominees. This has not only damaged our federal courts, which are facing an ongoing vacancy crisis, but has hurt the credibility of the U.S. Senate. Americans deserve better than this destructive, politically-motivated gridlock.”
WASHINGTON – Senate Majority Leader Harry Reid was forced to file cloture again yesterday to end the Republican filibuster of Caitlin Halligan, President Obama’s nominee to fill one of four vacancies on the 11-member D.C. Circuit Court of Appeals. A cloture vote is scheduled for Wednesday morning.
Marge Baker, Executive Vice President of People For the American Way, issued the following statement:
“The filibuster of Caitlin Halligan shows just how broken the Senate has become. In 2005, a bipartisan group of senators agreed to filibuster judicial nominees only under ‘extraordinary circumstances.’ Since then, the Senate GOP has radically redefined the meaning of ‘extraordinary,’ stalling and blocking nominees on the flimsiest of threads.
“We hope senators will listen to their consciences on this vote. Opponents are cherry-picking and twisting Halligan’s record in their attempt to block an exceptionally qualified, mainstream nominee. If they succeed, they will be ensuring a continued vacancy crisis in the second most important court in the country, which thanks to Republican obstruction is now operating with more than one-third of its active judgeships vacant. I hope that fair-minded Senate Republicans will stand up to their party’s leadership and allow this enormously well qualified woman to have the up-or-down vote she deserves.”
Yesterday, People For the American Way sent a letter to members of the U.S. Senate urging them to end the filibuster of Halligan. The full text of the letter can be found here.
People For the American Way today sent letters to members of the U.S. Senate urging them to vote to confirm Caitlin Halligan to sit on the Court of Appeals for the District of Columbia Circuit. The full text of the letter:
March 4, 2013
United States Senate
Washington, DC 20510
On behalf of the hundreds of thousands of members of People For the American Way, we write to express our strong support for the confirmation of Caitlin Halligan to the U.S. Court of Appeals for the District of Columbia Circuit. With a fourth seat on this 11-member court becoming vacant, the urgency of confirming Halligan becomes even more pressing.
Caitlin Halligan is supremely qualified with a broad level of support in the legal, women’s and law enforcement communities. Currently the General Counsel for the Manhattan District Attorney's Office, she also spent six years serving as New York State's Solicitor General. She is a nationally respected litigator who has earned the ABA's highest possible evaluation of her qualifications.
Her career shows that she recognizes that protecting individuals, their families, and their entire communities requires not only tough prosecution, but tough prosecution done fairly. So while she shares management responsibility for the Manhattan DA's Special Victims Bureau (which prosecutes those involved in child abuse, rape, domestic violence, and elder abuse), she also has been instrumental in the DA's Conviction Integrity Program, which seeks to prevent and correct wrongful convictions.
Her nomination has the support of numerous law enforcement individuals and organizations, including Robert Morgenthau (former DA of Manhattan), Raymond Flynn (New York City's Police Commissioner), the National District Attorneys Association, the New York State Sheriffs’ Association, the New York State Association of Chiefs of Police, and New York Women in Law Enforcement.
The best judges understand keenly how the law affects ordinary people. Halligan has worked to help economically disadvantaged families throughout her career. Even before law school, she worked at Georgians for Children, a statewide public policy organization that focuses on issues related to impoverished children and families. Over the years, she has engaged in pro bono work and community service projects that focus on families with the greatest needs. For example, she represented victims of Hurricanes Katrina and Rita who were at risk of losing their housing assistance.
In its 120-year history, the DC Circuit has had a grand total of five women judges. Halligan clerked for the first of those, trailblazer Patricia Wald, and she would be the sixth if confirmed. The National Conference of Women's Bar Associations, the Women's Bar Association of the District of Columbia, the National Center for Women and Policing, and the U.S. Women's Chamber of Commerce are just some of the women's organizations that are supporting her nomination.
Halligan has received the highest possible rating of her qualifications from a unanimous panel of the ABA’s nonpartisan Standing Committee on the Federal Judiciary. She has also received the strong support of a bipartisan group of renowned appellate advocates, including Miguel Estrada (Assistant to the Solicitor General under President George W. Bush and former nominee to this same court), Seth Waxman (Solicitor General under President Clinton), Carter Phillips (Assistant to the Solicitor General under President Reagan), and Walter Dellinger (Solicitor General under President Clinton).
A nominee with such sterling credentials and strong support from a broad range of the legal community is exactly the kind of mainstream, talented, and fair jurist we need on the federal bench.
The seat to which Halligan has been nominated has been vacant since 2005. In fact, the 11-member DC Circuit has lost three additional active judges since 2008. None of those judges has been replaced. Not surprisingly, this has had a serious impact on the caseload for the judges who are left. The Senate’s confirmation of George W. Bush nominee Thomas Griffith to the eleventh seat in 2005 resulted in there being approximately 121 pending cases per active judge. When the Senate debated Halligan’s nomination in 2011, that number had climbed to about 146 pending cases per active judge. Last month, with Judge Sentelle taking senior status, that number has now increased to about 188 cases per active judge, according to the most recent data on pending cases made available by the Administrative Office of U.S. Courts.
Caitlin Halligan has excelled throughout her career. With yet another vacancy opening up on the DC Circuit just last month, the need for someone of her caliber on the bench is greater than ever before. Her nomination deserves a vote on the Senate floor, and she should be confirmed to the DC Circuit.
Executive Vice President for Policy and Program
People For the American Way
Senior Legislative Counsel
People For the American Way
The Washington Post ran a story yesterday about President Obama's successful push to bring greater diversity to the federal courts. The story quoted a conservative activist who accused the White House of "lowering their standards" in order to find diverse nominees and a Republican aide who claimed that the White House's focus on diversity would "override the substantive qualifications of the nominees."
Leslie Watson Malachi, Director of African American Religious Affairs at People For the American Way, responded with the following letter to the editor:
To the editor:
Regarding the March 3 story, “Obama pushing to diversify federal judiciary amid GOP delays.”
One of President Obama’s most significant, but least noticed, achievements has been his effort to bring more women and people of color to the federal bench. Last week, the U.S. Supreme Court showed us just how critical that effort is.
In oral arguments on Shelby County v. Holder, the challenge to Section 5 of the Voting Rights Act, Justice Antonin Scalia declared that the renewal of voting protections for people of color simply amounts to a “racial entitlement.” Justice Sonia Sotomayor, the first Latina on the Supreme Court, promptly contradicted him.
Scalia’s arrogant dismissal is echoed by the conservative activist who tells the Post that the White House may be “lowering their standards” in nominating women and people of color and the GOP aide who worries that a focus on diversity would “override the substantive qualifications of the nominees.”
President Obama hasn’t had to choose between qualified nominees and diverse ones. Instead, he’s chosen judges and justices like Sotomayor: excellent nominees from diverse backgrounds, all of whom have earned their way to judgeships for which they are eminently qualified.
LESLIE WATSON MALACHI
DIRECTOR, AFRICAN AMERICAN RELIGIOUS AFFAIRS
PEOPLE FOR THE AMERICAN WAY
Gun Owners of America, a fringe group that hovers to the right of the National Rifle Association, is wading into the debate over Caitlin Halligan, one of President Obama's nominees to the hugely influential DC Circuit Court of Appeals. GOA's beef with Halligan is that when she was solicitor general of New York, she represented the state in its suit against gun manufacturers – a position she took for a client rather than one she espoused herself.
In an action alert today, GOA asks its members to call on their senators to oppose Halligan, calling her the “most anti-Second Amendment nominee in recent history,” a “zealot” and a “radical leftist.”
Among those who might disagree with GOA’s assessment of Halligan are former Bush judicial nominee Miguel Estrada, Reagan administration attorney Carter Phillips, and numerous law enforcement groups, all of whom have endorsed her nomination.
But the GOA’s extreme language should come as no surprise. After all, this is the same group that speculated that the Aurora movie theater shooting was an inside job, said that armed citizens could have stopped the Holocaust, claimed that the Affordable Care Act would “take away your guns,” and warned President Obama that he should “remember King George III’s experience.” Recently, GOA president Larry Pratt has gone even further, agreeing with theories that President Obama is raising a black army to massacre white Americans and that the president intends to pit “Christian, heterosexual white haves” against “black Muslim and/or atheist…have-nots.”
My family is from Selma, Alabama. My grandmother, aunt and mother (both teenagers at the time) were on the Edmund Pettus Bridge on March 7, 1965, what the history books now record as Bloody Sunday. Due to the terrible violence that occurred, my grandmother, a nurse, was called to the hospital to help treat the numerous people who had been injured, one of them being Civil Rights icon Congressman John Lewis.
I grew up hearing my family members’ Civil Rights Movement stories, continually in awe of their courage and determination. They had to deal with fire hoses, dogs, and police batons in order to receive what my generation now takes for granted, the right to vote.
Yesterday, nearly 50 years after Bloody Sunday and the passage of the Voting Rights Act, I stood outside the Supreme Court with many others who chanted, sang and rallied to protect the VRA’s Section 5. Yes, the dogs and the cattle prods are gone, but the spirit to oppress some of America’s citizens remains.
It saddens me that we still have to fight for our right to vote, and that there are those who are still trying to deny others their rights at the ballot box. But I was encouraged by the number of people who were outside the Supreme Court yesterday, people of all races and creeds and ages who are dedicated to and invested in protecting the right to vote! Together we sent a message to the Justices and to the nation that Section 5 is still needed, because while our country has come a long way from that grainy black and white footage of people getting beaten while fighting for their rights, discrimination and attempts to disenfranchise still exist, especially in the states covered by Section 5.
It’s often said that we are standing on the shoulders of giants, but in my case, I am truly a descendant of Civil Rights heroes whose names will never be in the history books. They took a risk, put their lives on the line, not just for themselves but for me, someone who would not be born for another 15 years. When I hear my grandmother at 86 years old say that she will put on her marching shoes if she has to, then I know that I have no choice but to put on mine. I was proud to be at the rally to protect Section 5 of the Voting Rights Act yesterday. I was proud to honor the legacy of my family and anyone else who participated in the Movement. I was proud to continue the fight to ensure that no one is denied the right to vote.