Edit Memo: Not Just the Supreme Court: Republicans’ Blockade of Judicial Nominees Started Long Before SCOTUS Vacancy

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: March 14, 2016
Re: Not Just the Supreme Court: Republicans’ Blockade of Judicial Nominees Started Long Before SCOTUS Vacancy

Senate Republicans’ vow to block anyone nominated for the Supreme Court by President Obama, no matter who it may be, has rightly gotten a lot of headlines. Their refusal to even consider a president’s Supreme Court nominee is unprecedented. Unfortunately, this campaign of obstruction is just latest extension of their obstinate refusal to responsibly fulfill the constitutional duty of considering the president’s nominees across all levels of the federal judiciary. Judiciary Committee chairman Chuck Grassley is leading the party’s strategy to keep vacancies open for as long as possible on our nation’s federal circuit and district courts.

This isn’t the first time that Grassley has led his party in seeking to block Obama from filling important judicial vacancies, regardless of who he might nominate. In 2013, Grassley sought to eliminate three vacant judgeships from the critically important 11-member DC Circuit Court of Appeals, rather than allow Obama to fill any of them. This was two months before the president had even nominated anyone for these seats. When his eventual nominees appeared before the Judiciary Committee, Republican members followed the lead of then-Ranking Member Grassley in opposing them regardless of their legal acumen, their professional experience, or their judicial temperament. Ted Cruz, for instance, made clear to Patricia Millett that he would join Grassley’s effort to block her confirmation “irrespective of your very fine professional qualifications.” During this high-profile partisan confrontation that Grassley created over the nation’s second most powerful court, he supported his obviously political position with principled-sounding claims that were repeatedly shown upon investigation to be without merit.

Since the GOP took control of the Senate, he has used his position as chairman of the Judiciary Committee to drastically slow down the consideration of President Obama’s judicial nominees. Perhaps the most notorious example is the nomination of L. Felipe Restrepo of Pennsylvania to the Third Circuit Court of Appeals. With the tacit cooperation of home state senator (and fellow Republican) Pat Toomey, Grassley did not even hold a confirmation hearing until seven months after Restrepo’s nomination, even though Toomey claimed to support the nomination and Restrepo had already been thoroughly fully vetted for a district judgeship just two years earlier. He was approved unanimously by the Judiciary Committee last July, but then languished on the Senate floor for half a year until Republicans finally allowed a confirmation vote in January. The delay had nothing to do with Restrepo’s qualifications: When he was finally confirmed, it was with overwhelming bipartisan support, with only six senators voting against him.

The current slowdown is a sharp departure from the norm, even considering other times when the White House and Senate are controlled by different parties. For instance, at this point in George W. Bush’s last two years, the Democratic-controlled Senate had confirmed 40 circuit and district court nominees. In contrast, the GOP-controlled Senate in President Obama’s last two years has only confirmed 16 judges so far. 2015 saw only 11 confirmations, the fewest since 1960, more than half a century ago, a time when there were hundreds fewer judgeships to fill than today.

March 9 saw a typical example of the Grassley model on the Senate floor, where he or one of his GOP colleagues on the Judiciary Committee actively – and needlessly – block votes on long-delayed, fully-vetted consensus nominees. Maryland Sen. Barbara Mikulski made a simple request of her colleagues: to hold a confirmation vote on two consensus district court nominees from Maryland and Tennessee. Paula Xinis has been awaiting a floor vote since she was approved by the Judiciary Committee by unanimous voice vote on September 17, nearly half a year ago. Tennessee’s Waverly Crenshaw has been waiting even longer: the committee advanced him – also by unanimous voice vote – way back on July 9. Each nominee has the support of their home state senators, two Democrats and two Republicans. Yet Sen. Mikulski’s request for a vote was blocked by Republican Judiciary Committee member John Cornyn of Texas, so individuals and businesses in Maryland and Tennessee are denied fully functioning federal courts.

In response to this floor action (or, more properly, floor inaction), the Judiciary Committee’s Ranking Democrat, Sen. Patrick Leahy, noted the connection to the constitutional crisis over the current Supreme Court vacancy: “While Republicans refuse to even consider the next Supreme Court nominee, I would think they would at least allow consensus lower court nominees to be confirmed.” Unfortunately, the GOP’s obstructionism reaches every level of the federal judiciary.

The American system of justice, where everyone can be assured of their fair day in court when their rights are violated, depends on having enough judges to hear those cases. But since Republicans took over the Senate, the number of circuit and district vacancies has nearly doubled (from 40 to 73), and the number of those vacancies officially designated by the Administrative Office of U.S. Courts as “judicial emergencies” has skyrocketed from 12 to 32.

So the refusal of the Senate GOP to do their job on judicial nominations is not new; it’s been their deliberate policy toward the entire federal court system. What’s new is the extension of that policy to the radical and irresponsible position that the Senate majority can refuse to perform its constitutional responsibility to give the president’s nominee fair consideration As chairman of the Judiciary Committee and architect of the party’s approach to judiciary matters, Chuck Grassley bears key responsibility for the harm his party is doing to the federal judiciary.

The damage is particularly bad when the vacancies occur at the circuit court level. Unlike district courts, circuit courts issue decisions that bind every federal court within their region. And since the Supreme Court takes so few cases each year, it is usually the circuit courts that have the last word on how the Constitution or federal laws will be interpreted in the regions they cover.

Fortunately, President Obama has nominated a number of highly qualified and respected individuals to serve on circuit courts around the country. When Democrats controlled the Senate, then-Chairman Patrick Leahy worked cooperatively with Republican home state senators to process circuit court nominees in a timely manner, such as when Iowan Jane Kelly was given a committee hearing less than a month after being nominated. Now that Grassley is chairman, it is imperative that he, too, work with home-state senators and fellow committee members to ensure that President Obama’s circuit court nominees have open hearings and timely committee votes. Indeed, several of these nominees could already have had their hearings by now.

Donald K. Schott of Wisconsin for the 7th Circuit (Illinois, Indiana, and Wisconsin): Nominated on January 12 (more than two months ago), Schott would fill a seat that has been empty for more than six years, the oldest circuit vacancy in the nation. He was evaluated and found qualified by the state’s bipartisan six-member Federal Nominating Commission, three appointed by Sen. Ron Johnson and three appointed by Sen. Tammy Baldwin. A longtime partner at a major national firm, Schott has extensive litigation experience at both the state and federal levels, and at both the trial and appellate levels. He has regularly been recognized as one of the best lawyers in the state. He also has strong support in the Wisconsin academic legal community.

Justice Myra Selby of Indiana for the 7th Circuit (covering Illinois, Indiana, and Wisconsin): Justice Selby was nominated on January 12 (more than two months ago). She had developed expertise in health care issues as a private practitioner and as a high-ranking state government official when she was appointed to the Indiana Supreme Court in the 1990s, becoming both the first woman and the first African American to serve on that court. Knowing the enormous impact that courts have on the lives of everyday Americans, Justice Selby led efforts to increase the state high court's accessibility to the Indiana public through public education and outreach. Since retiring from the state court, she has had a successful practice as a partner in the Indianapolis branch of a major law firm, while also chairing a state commission that studies ways to increase racial and gender fairness in the legal system. Upon confirmation to the Seventh Circuit, she would become the first African American from Indiana and the first woman from Indiana to serve on that court.

Jennifer Klemetsrud Puhl of North Dakota for the 8th Circuit (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota): Nominated on January 28, Puhl has worked in the U.S. Attorney’s office in North Dakota since 2002, gaining substantial experience prosecuting a variety of criminal matters. Her expertise across different areas of the law has led to her being named to a number of leadership roles, including Computer Hacking and Intellectual Property Coordinator, National Security Cyber Specialist, Human Trafficking Coordinator, and Project Safe Childhood Coordinator. Puhl has played a major role in fighting human trafficking in North Dakota. Upon confirmation, Puhl would be the first woman ever to serve as a federal judge at any level in North Dakota, circuit or district. In addition, even though the 8th Circuit covers seven states, it has only had two women judges in its history.

Judge Abdul Kallon of Alabama for the 11th Circuit (covering Alabama, Florida, and Georgia): Judge Kallon was nominated on February 11. An immigrant from Sierra Leone, he began his legal career in Alabama, had extensive litigation experience, and became a partner in a major law firm based in Birmingham. His exemplary reputation in the legal community earned him the support of Alabama Sens. Jeff Sessions and Richard Shelby when President Obama nominated him as a district judge in 2009. The Senate confirmed him unanimously for that position, and he has continued to earn the respect of the Alabama legal community. Upon confirmation, Kallon would become the first African American from Alabama to serve on the 11th Circuit (or on its predecessor court, the 5th Circuit, which used to include Alabama). The judgeship he would fill has been vacant since 2013 and has been formally designated a judicial emergency.

Judge Lucy Haeran Koh of California for the 9th Circuit (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington): Koh was nominated on February 25 and would bring a wide range of professional experience to the bench. She spent several years at the Department of Justice, earning awards and recognition for her work as a prosecutor. She then moved to private practice and became a litigator and partner at a major law firm. Gov. Arnold Schwarzenegger then appointed her as a state judge in 2008. Her success at all these endeavors led President Obama to nominate her to become a federal district judge, and the Senate confirmed her unanimously in 2010. Upon confirmation to the 9th Circuit, Judge Koh would be only the second Asian American woman ever to serve on a federal circuit court. The vacancy she would fill has been formally designated a judicial emergency.

Nominations like these are important, but they don’t get the national attention that Supreme Court vacancies do. What’s important to note, however, is that when Chuck Grassley and his fellow Republicans claim some lofty-sounding principle to defend their planned and unprecedented Supreme Court blockade, they don’t have clean hands. Instead of doing their jobs of efficiently vetting and voting on judicial nominees in a timely manner, they’ve been stalling them at all levels.

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