Thanks, Mitch: Confirmed Judges to Skyrocket From One to Two

The GOP-controlled Senate's record for slow-walking President Obama's judicial nominees stands in stark contrast to how the Democratic-controlled Senate confirmed George W. Bush's judicial nominees in his final two years. Democrats shepherded 68 of Bush's circuit and district court judges through confirmation in his last two years, including 15 by this point in 2007.

Back in February, the Judiciary Committee unanimously approved four district court nominees from Texas and Utah. But it wasn't until last week that Senate Majority Leader Mitch McConnell finally allowed a vote on one of them, the first and only judicial confirmation vote of the 114th Congress.

Today, McConnell is taking aggressive action by scheduling a Senate vote on ... one of the three remaining district court nominees that have been pending on the floor for nearly two months. Wow, one! Such progress!

The sky's the limit!

PFAW

More of the Same, As Grassley Delays More Judicial Nominees

This morning, two judicial nominees were scheduled for a vote before the Senate Judiciary Committee. Unfortunately, Republicans on the committee delayed the votes for Kara Farnandez Stoll (for the Federal Circuit Court of Appeals) and Roseann Ketchmark (for the Western District of Missouri) by at least a week.

Why? Because they could.

Committee rules let senators "hold over" (i.e., delay) committee votes without explanation. This can be a useful mechanism when a nominee is controversial or when senators need more time to evaluate a particular nominee. At its best, the rule can be of use to senators who take seriously their constitutional obligation to staff the federal courts with highly qualified, apolitical judges.

Unfortunately, it can also be of use to Republicans senators seeking to slow down the confirmation process as much as possible in order to maximize the number of vacancies available for a future Republican president to fill with right-wing ideologues.

Since Obama became president, only 12 of his circuit and district court nominees have had their committee votes held on schedule. Republicans have had committee votes held over without cause for all but 12 of his judicial nominees, which is an unprecedented abuse of the rule. That's less than 5% of all the Obama judicial nominees who the Judiciary Committee has voted on.

It was bad enough when Republicans were in the minority and demanding needless delays of President Obama's nominees over the course of six years. But now they are in the majority. They're demanding delays in the schedule that they themselves set up.

So while the number of circuit and district court vacancies has jumped from 40 at the beginning of the year to 50 today, and while judicial emergencies have nearly doubled from 12 to 23 in the same period, Sen. Grassley and his GOP colleagues on the Judiciary Committee are using every opportunity to delay the consideration of judicial nominees.

PFAW

95 Senate Roll-Call Votes While Lynch Waits for Hers

Loretta Lynch's nomination has been languishing on the Senate floor since February 26. In that time, Majority Leader Mitch McConnell has found time to hold 95 roll call votes but somehow he just can't fit in a vote on the Lynch nomination. Why? Because he's holding Lynch's nomination hostage on a totally unrelated item that has nothing to do with her qualifications to be Attorney General.

Having been thoroughly vetted, Lynch was approved by a bipartisan majority of the Judiciary Committee seven weeks ago. She could and should have confirmed within a few days, as is customary for Attorney General nominees. Yet that hasn't happened. In fact, she has been waiting for a floor vote longer than the seven most recent attorneys general combined, a landmark she passed even before the Senate's two-week spring recess.

Since Lynch has been waiting for a floor vote, the Senate has taken 95 roll call votes. These have covered five bills, four executive nominations, one judicial nomination, one resolution of disapproval of an NLRB action, and one resolution on the budget. That last one is particularly worthy of note, because several dozen of the roll call votes were on non-binding amendments to a non-binding budget resolution.

McConnell held a veto override vote on the Keystone Pipeline bill, a major priority of some important Republican donors but not connected to the Lynch nomination. He held a roll call vote to repeal the individual mandate of the Affordable Care Act, a major priority of the Tea Party base that had no chance of ever becoming law, and which has no connection to confirming Lynch. And he has held multiple roll call votes to force Democrats to accept abortion restrictions on women who are victims of human trafficking ... which also has nothing to do with Lynch, except that McConnell has chosen that particular item as the ransom to demand in exchange for releasing his hostage.

McConnell needs to drop this ridiculous demand and allow a vote. The position of Attorney General of the United States is simply too important for such nonsense.

PFAW

Where is Pat Toomey on Phil Restrepo's Nomination?

Sunday was the five-month anniversary of when President Obama nominated Pennsylvanian Phil Restrepo to the Third Circuit Court of Appeals. Yet Judiciary Committee chairman Chuck Grassley has still refused to schedule a hearing for him.

It's not like the committee has been hearing too many other circuit and district court nominees to make room for Restrepo. In fact, Grassley has had only two hearings for such nominees so far this year. At the second one, he only scheduled it for two nominees, although several other long-waiting nominees could easily have been accommodated.

And it's not like there is no need to fill the vacancy. In fact, on January 27, Third Circuit Judge Marjorie Rendell announced her intention to take senior status on July 1, making it important to get Restrepo confirmed by then so the court would not needlessly have a second vacancy. Nevertheless, Grassley did nothing.

A few weeks later, on February 20, the Administrative Office of U.S. Courts officially re-designated the vacancy that Restrepo would fill as a judicial emergency. Grassley's response was to do nothing. It was three weeks later that he held a hearing for two other judicial nominees and chose to exclude Restrepo.

Way back in November, Restrepo's nomination prompted statements of support from both of his home state senators, Democrat Bob Casey and Republican Pat Toomey. Unfortunately, it has been clear for awhile now that Grassley needs additional prodding, and given GOP control of the Senate, Toomey has a particular responsibility to make sure this nominee receives the attention he deserves. Other than release a statement five months ago, has Toomey spoken with Grassley? If not, why not? And if so, why has he been so ineffectual over these past five months?

 

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Wisconsin Voter ID Reminds Us of the Importance of Circuit Courts

The Supreme Court this morning denied a request to review the Seventh Circuit's decision to uphold Wisconsin's strict voter ID law. This case shows just how important fair and just courts are to protecting our most important rights, and the consequences of Republican efforts to prevent President Obama from filling circuit court vacancies.

Last spring, a federal district court struck the law down, recognizing that it would have a discriminatory impact on African Americans and Latinos, and that "it is absolutely clear that [it] will prevent more legitimate votes from being cast than fraudulent votes." Of course, that is no surprise, since that is the unstated purpose of these laws. Fortunately, when Wisconsinites recognized that their rights were being violated, a federal judge was able to make sure that partisan efforts to suppress the vote were not able to overcome our laws protecting the right to vote.

Unfortunately, this decision was reversed by a Seventh Circuit panel consisting of conservative judges nominated by Presidents Reagan and George W. Bush. When the entire circuit was asked to review the panel decision, they split 5-5, just one vote short of preventing those rules from going into effect.

One judge could have really made a difference. And it just so happens that Wisconsin Sen. Ron Johnson has blocked efforts to fill a longtime vacancy on that court for more than four years, since the day he took office after the 2010 elections. Make no mistake: Johnson and his fellow Republicans preventing President Obama from putting judges on the bench know full well how important the federal courts are, especially the circuit courts.

In fact, the Seventh Circuit is not the only one with a long-unfilled vacancy. Republican senators from Texas, Kentucky, and Alabama have also been blocking President Obama's efforts to nominate highly qualified jurists to fill longtime vacancies on the Fifth, Sixth, and Eleventh Circuits. As we have written:

[N]o senator should see President Obama's outreach as an opportunity to coerce him into naming an unacceptable far-right nominee. Keeping the judgeship vacant even longer in the hopes that a future (hopefully Republican) president will fill it is not a reasonable option, serving only to make justice less available to those who need it most. At some point, such senators have two choices. They can agree with the White House on someone everyone can support. Alternatively, they should acknowledge the extensive consultations that occurred and present any concerns about the eventual nominee in public before the Judiciary Committee, where the nominee has a chance to respond.

Either way, Republican senators cannot be allowed to indefinitely prevent anyone from being nominated to fill longtime judicial vacancies.

PFAW

Why Only Two Judges for Hearings This Week?

Good news: For the first time since January, the Senate Judiciary Committee is allowing a hearing on judicial nominations. The bad news: Although seven nominees have been waiting since last November, Chairman Chuck Grassley is only allowing a hearing for two of them.

That's right … although the number of circuit and district court vacancies has increased from 40 to 51 since the beginning of the year, and even though the number of judicial emergencies has jumped from 12 to 22 in that time, and even though there are numerous nominees who could have a hearing this week, all but two of them will have to keep waiting.

Roseann Ketchmark would serve in the Western District of Missouri, and Kara Farnandez Stoll would serve in the Federal Circuit. For those whose legal rights are protected by those courts, tomorrow's hearing is good news.

But why only two nominees on the agenda? Dale Drozd would fill a judicial emergency in California's Eastern District. LaShann DeArcy Hall and Ann Donnelly would serve in New York's Eastern District. Travis McDonough has been nominated for a seat in Tennessee's Eastern District. And L. Felipe Restrepo would fill a judicial emergency on the Third Circuit, where a second vacancy will be opening up in July.  They all have to wait.

This fast-as-molasses action from the Judiciary Committee stands in stark contrast to how the Democratic Senate processed George W. Bush's nominees in the last two years of his presidency. The Senate confirmed 68 circuit and district court nominees during that time, slashing the number of vacancies from 56 at the start of 2007 to as low as 34 in the fall of 2008.

The current Senate should match that dedication to processing judicial nominations. For that to happen, the Judiciary Committee needs to let nominees have timely hearings.

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McConnell Should Let Senate Confirm Judges

Majority Leader Mitch McConnell has yet to schedule a confirmation vote on the four district court nominees who cleared the Judiciary Committee without opposition nearly two weeks ago: Jill Parrish for the District of Utah, and Alfred Bennett, George Hanks, and Jose Rolando Olvera for the Southern District of Texas.

Texas in particular is in desperate need of more federal judges. The Lone Star State has a shocking 11 judicial seats currently vacant (with a twelfth one opening this spring). In fact, the eleventh vacancy opened just today. This opening came as no surprise: Judge Richard Schell of the Eastern District announced back in January of 2014 that he would be taking senior status. Texas Sens. Cornyn and Cruz could have recommended an acceptable nominee to the White House in time for that person to have been fully vetted, nominated, and confirmed last year. Unfortunately, that did not happen; no nomination has been made yet.

Of those eleven vacancies, seven have been designated judicial emergencies. That's nearly one third of all the judicial emergencies nationwide. Confirming the three Texas nominees who have been waiting for Senator McConnell to schedule a floor vote would help alleviate this problem.

All three would serve in the Southern District of Texas, which will still have an additional two vacancies remaining even after these nominees are confirmed. McConnell's delay is adding unnecessarily to the strain on the area's federal court system.

Just how bad is that strain? The Judicial Conference of the United States has asked Congress to create an additional two judgeships in the Southern District of Texas. In other words, even if all three pending nominees were confirmed today, and the other two vacancies were magically filled tomorrow (even though they don't have nominees), the crushing caseload burden on the Southern District is so bad that at least another two judges would be needed to ensure that the people of Texas have access to a fair and efficient federal court system.

A confirmation vote on the Texas (and Utah) nominees is long overdue.

PFAW

GOP Senate Moving Obama's Judges Slower than Democrats Moved Bush's

Two months into the new 114th Congress, it's a good time to take stock of how the Republican-controlled Senate is doing when it comes to processing circuit and district court judicial nominations. So far, the Judiciary Committee has held only one hearing to consider such nominations, and that was back in January. And even though no one questioned the four nominees' qualifications, Chairman Grassley delayed a scheduled vote by two weeks without offering an explanation, so it took the committee more than five weeks after their hearing to finally advance them to the floor. No further hearings have been held (but one has been announced for next week).

As we have written before, a key metric for comparing how the Senate is doing in Obama's last two years is how the newly-Democratic Senate handled George W. Bush's nominees in the last two years of his presidency. The Judiciary Committee under Chairman Patrick Leahy was very busy during the first two months of the 110th Congress. There were numerous nominees from the previous Congress approved by the GOP-controlled Judiciary Committee but left unconfirmed at the end of 2006. Rather than force them into new hearings for the benefit of the new committee members, Chairman Leahy arranged for quick votes instead. By this point in 2007, the committee had advanced ten such judicial nominees directly to the full Senate. Eight of them were already confirmed by the full Senate by mid-February. (The remaining two were confirmed on March 8.)

In addition to re-vetting and voting on these ten returning judicial nominees, the Judiciary Committee had also fully processed three first-time nominees by this point in 2007, with hearings quickly followed by committee votes just 3½ weeks later. (All three were confirmed by the end of March.)

In Bush's last two years, the Senate confirmed 68 circuit and district court nominees, slashing the number of vacancies from 56 at the start of 2007 to as low as 34 in the fall of 2008. Today's Republican Senate has confirmed no nominees so far this year. In the meantime, the number of current vacancies has climbed from 40 at the beginning of the year to 47 today, and the number of judicial emergencies has jumped from 12 to 21.

As noted above, the Judiciary Committee has said it will hold a nominations hearing next week. Considering that there are seven circuit and district court nominees who were nominated back in November, they should all have hearings as soon as possible.

PFAW

More Delay on the Restrepo Nomination

Qualified jurists nominated for federal judgeships way back in November are still waiting to have a committee hearing scheduled. They include Kara Farnandez Stoll, who would be the first woman of color on the Federal Circuit, and L. Felipe Restrepo of Pennsylvania, who would be the first judge on the Third Circuit with experience as a public defender. The Third Circuit vacancy has been designated a judicial emergency, and with another vacancy on that court opening on July 1, it is even more important not to keep delaying Restrepo's already overdue hearing.

Yet a Grassley spokeswoman told The Legal Intelligencer (subscription required) that she "couldn't even estimate" a timeframe for Restrepo's hearing. Apparently, that's because the committee is also working on other nominations. She said that processing the Loretta Lynch attorney general nomination had required "all hands on deck," and that the committee was also preparing for the deputy attorney general nomination of Sally Yates.

Surely the committee is capable of handling both executive and judicial nominations.

A comparison to the Bush era is instructive, when the Democratic Judiciary Committee considered Michael Mukasey's nomination to be attorney general. The committee received Mukasey's nomination on September 21, 2007, held hearings, and advanced him to the full Senate on November 6. During that time, the committee was able to hold confirmation hearings on six judicial nominees and advance two to the full Senate. It was also able to advance an additional four judicial nominees the week after voting on Mukasey.

Fast-forward to now, a week after Lynch was advanced to the full Senate. The Judiciary Committee hasn't held a hearing for circuit or district court nominees since January 21, a week before the Lynch hearing. In the meantime, the number of current vacancies has climbed from 40 at the beginning of the year to 47 today, and the number of judicial emergencies has jumped from 12 to 21.

Hearings for Judge Restrepo and other judicial nominees are long overdue.

PFAW

Republican Inaction as Judicial Emergencies Jump

Yesterday we blogged about how the Senate Judiciary Committee and Chairman Chuck Grassley ought to move judicial nominations next week when they return from recess. We noted that the number of vacancies has increased from 39 at the end of last year's lame duck session to 46 today, with fourteen of those officially designated as judicial emergencies.

Well, we've had developments since yesterday's post. First, next week's committee schedule is up, and no hearings have been announced for judicial nominees.

And secondly, the Administrative Office of U.S. Courts this morning designated an additional five vacancies as judicial emergencies, so the total has jumped from 14 to 19.

These new emergencies include one in the Northern District of Texas, which has been vacant since July of 2013 and which had been announced in advance in April of that year. Yet it was not until last July that Sens. Cornyn and Cruz announced a process to identify Northern District recommendations to the White House. Perhaps if they had not waited more than a year after being notified of this vacancy, it would be filled today. Instead, there is no nominee yet, and a vacancy that should not still exist is instead a judicial emergency.

Texas now has seven judicial emergencies, more than a third of the national total. Two of them have nominees who should have advanced to the Senate floor last week, but were delayed when Republicans decided to delay the scheduled committee vote on four fully vetted district court nominees by two weeks simply because they could.

Another of the newly designated emergencies is in the Third Circuit. The good news is that district court judge L. Felipe Restrepo was nominated to fill this seat way back in November, and that he has the enthusiastic support of his home state senators, Democrat Bob Casey and Republican Pat Toomey. The bad news is that Chairman Grassley continues not to schedule a hearing for this highly qualified nominee (or any other). With this vacancy now a judicial emergency and a second vacancy on the circuit opening in July, the decision to slow-walk this nomination is even more harmful.

So as of today, the number of judicial emergencies has jumped from 12 at the beginning of the year to 19 today. Senate Republicans can and should do much more to get that number moving back down.

PFAW