Time to Stop GOP Obstruction of Judicial Nominees

To: Interested Parties
From: Marge Baker
Date: August 2, 2011
Re: Time to Stop GOP Obstruction of Judicial Nominees

As the Senate prepares for a planned recess scheduled through Labor Day, it is incumbent upon Republicans to allow floor votes on the rapidly increasing number of judicial nominees who have been approved by the Senate Judiciary Committee but whose nominations are still pending before the whole Senate. As of August 2, a total of 24 nominees are still waiting for a final confirmation vote.

Yet despite the urgent need to fill judicial emergencies and ensure a working judicial system, GOP opposition remains as intransigent as ever, and their obstruction has a particularly large impact on nominees who are women or people of color. Despite claims to the contrary, Republican Senators are still playing politics with the federal judiciary.

There is no reason to delay in confirming every one of the nominees pending before the full Senate. All but one of these nominees enjoyed strong bipartisan support in committee. In fact, 21 of the 24 were approved without recorded opposition. There is simply no good reason for continued delay on these consensus nominees. Yet Senate Republican leaders refuse to consent to floor votes. During the past two months, although the Senate Judiciary Committee has steadily processed nominations, the Senate has voted on a mere five judges.

Why are Republicans blocking votes on unopposed nominees? Are they trying to keep as many seats empty as long as possible in the hopes of capturing the White House – and the right to nominate judges – in 2012? Are they simply trying to score partisan points? What legitimate reason could they have?

The obstruction is even more shameful when you consider that there are 89 district and circuit court vacancies, 37 of which have been officially designated as “judicial emergencies” by the Administrative Office of the U.S. Courts. That is an official designation for courts where there are simply not enough judges to get the work done effectively. As a result, more and more people seeking to protect their rights in a court of law are forced to wait, and justice delayed is all too often justice denied.

Twelve of the languishing consensus nominees would fill those judicial emergencies, immediately reducing by a third the number of urgently overstressed courts.

In a nation woefully short of judges, we have two dozen unquestionably qualified nominees who are forced to sit and wait for Republican leaders to finally agree to let the Senate hold a vote. Many of these are part of President Obama’s significant efforts to diversify the federal bench. They include:

  • Bernice Donald, an African American woman nominated to the Sixth Circuit who is strongly supported by her senior home state senator, Lamar Alexander. Donald was originally nominated in 2010, renominated in early January, and approved without objection by committee in early May.
  • Kathleen Williams, a Miami public defender who was nominated over a year ago to the Southern District of Florida, which has been a judicial emergency for over two years. She met no objection in committee and has the public support of Republican Senator Marco Rubio, yet Republicans have denied her a floor vote for over two months.
  • William Kuntz, a prominent African American commercial litigator who is needed to fill a judicial emergency in the Eastern District of New York dating back to 2008. He, too, has been waiting for a floor vote since May.

Unfortunately, it is not unusual for women and people of color to have to wait a long time after committee approval before a confirmation vote. While President Obama’s white male confirmed nominees have waited an average of 82 days, women and people of color have been forced to wait 100 days, or 22% longer. In fact, the entire confirmation process takes an average of almost a month longer for women and people of color.

The needless delay in considering consensus nominees is hardly the only example of the kind of Republican obstructionism that is damaging the court system. For instance, in some cases, senators are withholding their consent for the Senate Judiciary Committee even to consider certain nominations. Wisconsin Senator Ron Johnson is preventing emergency positions from being filled on the Seventh Circuit Court of Appeals and the Western District of Wisconsin. The nominations of Victoria Nourse and Louis Butler for those positions have been pending since 2010 and 2009, respectively. In addition, Senator Tom Coburn has refused to allow the committee to consider the nomination of Arvo Mikkanen to the district court in Oklahoma.

With all the obstruction, the quickest way to get as many judges confirmed as soon as possible is through the two dozen nominees waiting now for a floor vote. Americans want their government to work. Americans deserve an efficient, fully functioning federal court system, not one that resembles that of a nation in decline. Republicans can take a significant step in reversing the damage their obstructionism has caused by consenting to the confirmation of two dozen highly qualified judicial nominees with wide bipartisan support before the scheduled recess begins.

If they do not act soon (or if the Senate does not go into recess), then Senate Majority Leader Harry Reid should force the issue and file cloture on all the pending nominations.

At the start of the current session of Congress, the two party leaders informally agreed to return to regular order and increase the pace of judicial confirmations, which had suffered from unprecedented Republican obstruction during the previous two years. Unfortunately, that agreement has broken down. Action must be taken to end the obstruction.

Senate Republicans, paralleling their House colleagues who are willing to wreck the U.S. economy if they don’t get what they want, are playing politics with judicial nominations and actively sabotaging the nation’s justice system. Since President Obama took office, they have used every trick in the book to prevent the judicial branch of the United States government from functioning properly. Indeed, through their mistreatment of Obama’s judicial nominees, Senate Republicans are living up to the vows made by the right wing at the start of his presidency to act as a “resistance movement” rather than as responsible participants in a constitutional democracy.



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