Garland Gets the ABA's Highest Possible Evaluation

The ABA has released its evaluation of Chief Judge Merrick Garland’s qualifications for the Supreme Court, and – surprise! – he earned their highest possible rating:  Every member of the evaluation committee that combed through his record and talked to practitioners around the country agreed: Judge Garland is well qualified to serve on the Supreme Court.

This isn’t a surprise.  We’ve known all along how incredibly well qualified he is.  But the ABA has put online a very detailed explanation of how they reached their conclusion.  For anyone who doubts that this is an excellent nomination, this ABA report is must-reading.

Integrity is essential in any judge, especially on the Supreme Court.  Not surprisingly, the committee heard amazing things about Judge Garland’s integrity.  Some sample quotes from the people the committee reached out to:

  • “Garland’s integrity is off the scales.”
  • “I do not know a finer person than Judge Garland. He is very solid, has the utmost integrity, and is a totally scrupulous, kind and generous person. It is hard to find a nicer person.”

As for his professional competence, the ABA panel was clearly extremely impressed.  Here is how they summarized what they heard from those who know best:

The unanimous consensus of everyone we interviewed was that Judge Garland is superbly competent to serve on the United States Supreme Court. This significant point warrants repeating:  all of the experienced, dedicated, and knowledgeable sitting judges, several former solicitor generals from both political parties, legal scholars from top law schools across the country, and lawyers who have worked with or against the nominee in private practice, government or within the judiciary describe the nominee as outstanding in all respects and cite specific evidence in support of that view.

When you read that paragraph, you can almost hear the ABA members saying “Wow!”

Regardless of judicial or political ideology, everyone wholeheartedly agrees that Judge Garland is supremely well qualified.

Unfortunately, there is one holdout group that is putting politics about all else: Senate Republicans, who still refuse to even hold a confirmation hearing for the nominee.

So while the ABA gives Judge Garland its highest possible rating, Senate Republicans are giving him the finger.  And it’s the American people who lose.

PFAW

Criticism Mounts for Senate GOP Obstruction of Judges

Perhaps the most vital role the United States Constitution assigns to the Senate is the vetting of federal judicial nominees.  An efficient and independent judiciary is vital to those seeking to vindicate their legal rights.  It is also vital to maintaining the separation of powers, which the Founders recognized as a cornerstone of our freedom.

Yet Republicans have done everything in their power to obstruct all of President Obama’s judicial nominees.  Since they’ve taken control of the Senate, Republicans have used their enhanced power to slow down the confirmation rate to historic lows. And by blockading a Supreme Court nominee regardless of his qualifications, they have drawn more attention recently to how they’ve been sabotaging the confirmation process for federal judges at all levels.

Today’s New York Times has a devastating editorial – The Senate’s Confirmation Shutdown – detailing the obstruction.  Beginning with the most prominent example – the refusal to allow President Obama to fill a vacancy on the Supreme Court, regardless of the nominee’s qualifications – the editorial sets out a powerful indictment of how the Senate GOP has used its control of the chamber to keep federal courts around the country understaffed:

 This has been enormously damaging to the district courts, which deal with hundreds of thousands of cases annually, and where backlogs drag out lawsuits and delay justice. It also harms the appeals courts, whose rulings are the final word in nearly all litigation, since the Supreme Court hears only about 75 cases a year.

 How bad has it gotten? Compare the current Senate’s abysmal record with the Democratic-led Senate that President George W. Bush faced in the last two years of his administration. By June 2008, the Senate had approved 46 of Mr. Bush’s judicial nominees; they confirmed a total of 68 by September. In contrast, Mr. McConnell’s Senate has confirmed only 20 of Mr. Obama’s judges since Republicans took control in January 2015, the slowest pace since the early 1950s. Appellate judges accounted for just two of those confirmations, fewer than at any time since the 19th century.

Those twenty confirmations during the past year-and-a-half include two for the Court of International Trade.  The other 18 are for district and circuit courts, fewer than the number of post offices they’ve renamed so far this Congress.

The result is a substantial increase in the number of vacancies since the GOP took over the Senate, with the number of judicial emergencies (vacancies with overwhelming backlogs that impede access to justice) skyrocketing to 2½ times what it was at the beginning of this Congress.  The Times continues:

It would be easy to fill most of these vacancies if the Senate did its job. Currently, 37 of Mr. Obama’s nominees remain bottled up in the Senate Judiciary Committee, 30 of whom are still waiting for their hearing; 17 more have been approved by the committee but have not been scheduled for a full Senate vote. To make matters worse, Senator Charles Grassley of Iowa, chairman of the Judiciary Committee, has said he will shut down the confirmation process, such as it is, before the presidential nominating conventions in July.

Not mincing words, the Times editorial calls this behavior “disgraceful and disgusting,” warning that Senate Republicans “should not be surprised if, come November, the voters choose representatives who actually do their job.”

Indeed, the message Senate Republicans are hearing from Americans is to #DoYourJob.

They could start by holding a hearing for Supreme Court nominee Merrick Garland.  They could also stop delaying committee votes on nominees like Don Schott for the Seventh Circuit (whose vote today was delayed simply because committee Republicans could delay it).  They could hold hearings for qualified circuit court nominees like California’s Lucy Koh for the Ninth Circuit and North Dakota’s Jennifer Kelmetsrud Puhl for the Eighth Circuit, both of whom have the support of their home state senators.  Republicans could also stop blocking hearings for Indiana’s Myra Selby for the Seventh Circuit, Alabama’s Abdul Kallon for the Eleventh Circuit, Kentucky’s Lisabeth Tabor Hughes for the Sixth Circuit, and Pennsylvania’s Rebecca Haywood for the Third Circuit, all of whom are currently facing obstruction by Republican home state senators who simply want to prevent President Obama from filling these vacancies.

Whether it’s the Supreme Court, the circuit courts, or the district courts, Senate Republicans are keeping as many vacancies open for as long as possible, so that they can be filled by a President Donald Trump, whose racist comments about judicial qualifications and whose attacks on judicial independence should, in a sane party, disqualify him from being given the power to nominate judges at all.

PFAW

New Campaign Slogan for Pat Toomey?

Last month, Pennsylvania Sen. Pat Toomey and Senate Majority Leader Mitch McConnell put on a great dog-and-pony show to make it look like Toomey was working to get his home-state nominees confirmed.  This afternoon, Toomey had a chance to really support those nominees, and he was – surprise! – missing in action.

Sen. Elizabeth Warren asked for unanimous consent for the Senate to vote to confirm all 15 federal district court nominees pending on the Senate floor.  Most have been waiting for more than four months since committee approval for a floor vote, including two from Pennsylvania who were jointly recommended by Sens. Toomey and Bob Casey.  In fact, six of the nominees have been waiting for a vote since last year!

McConnell objected.  Toomey was nowhere to be found to stand up for his nominees, who would fill vacancies that have been open since August and September of 2013.

Then Sen. Warren sought unanimous consent to vote on a smaller list, one that still included the Pennsylvania nominees.  And once again, McConnell objected, and Toomey was nowhere to be found.

(Warren then tried with only four non-Pennsylvania nominees, then only one, but her efforts were nevertheless shot down, this time by Republican Orrin Hatch.)

This would have been a great opportunity for Toomey to stand up to his party boss and demand a vote for his nominees, who were fully vetted and approved unanimously by the Judiciary Committee way back in January.  As a member of the majority party, Toomey’s requests would presumably carry more weight with McConnell than Casey’s.  But we’ll never know, because Toomey would not publicly stand up against McConnell.

This is sadly reminiscent of Toomey’s non-supportive “support” for Pennsylvanian Phil Restrepo for the Third Circuit, when Toomey cooperated with GOP leadership in their efforts to slow down the confirmation process as much as possible.

And of course, Toomey quickly obeyed when McConnell demanded that his fellow Republicans refuse to consider President Obama’s nomination of Merrick Garland to the Supreme Court.  This unprecedented act of obstruction has significant harmful consequences, as described in a recent report by our affiliate People For the American Way Foundation and the Constitutional Accountability Center.

So perhaps Toomey could adopt this as a campaign slogan:

Pat Toomey:  Putting Pennsylvania first  (Except when his Washington DC party boss tells him not to)

PFAW

Report by Elizabeth Warren Slams GOP Obstruction of Nominees

Since Senate Judiciary Chair Chuck Grassley is making sure that the committee he runs completely ignores Merrick Garland’s Supreme Court nomination, one might think that he’s using the extra time to at least process the president’s many circuit and district nominees. Not!

While Grassley and Senate Majority Leader Mitch McConnell’s brazen and unprecedented refusal to consider Garland has drawn a great deal of attention,  PFAW has long reported on how this obstruction, far from being unique to Garland, is an extension of how the Senate GOP has treated President Obama’s lower court nominees for most of his time in office.

Today, Sen. Elizabeth Warren has made a tremendous contribution to the national conversation, issuing a new report entitled Going to Extremes: The Supreme Court and Senate Republicans’ Unprecedented Record of Obstruction of President Obama’s Nominees.  The senator covers how Republicans have worked hard not to thoughtfully vet both judicial and executive branch nominations, but to slow down their confirmations as much as possible, or block their confirmations altogether.

She uses Senate Republicans’ own statements about the Garland nomination to show the disingenuousness of the rationales for obstruction they present to the public and demonstrates that their obstruction is unprecedented.  And with a prosecutor’s efficiency, she makes the powerful case that the GOP has consistently and deliberately slow-walked or blocked altogether the president’s circuit and district court nominees, as well as his executive branch nominees.

Supported with facts and figures from the nonpartisan Congressional Research Service, Sen. Warren’s new report is a devastating indictment of a political party that has misused the confirmation process to prevent the executive and judicial branches from functioning effectively to protect consumers and workers, hold large corporations accountable, and protect equality.

As she notes in the report’s conclusion:

From the moment the Supreme Court vacancy arose, Senate Republicans linked arms in an attempt to deny President Obama the full authority of his office in the final year of his presidency. They cynically claimed they wish to “let the people decide,” but the people have already decided. Twice. They elected President Obama in 2008 by nine million votes and re-elected him in 2012 by five million votes. Republicans’ statements over many weeks have made clear that their true interest is what it has been for the past eight years: to block and hinder President Obama at every turn, dragging out or blocking outright the confirmation of nominees across the government and the courts.

As the report shows, the GOP has a shameful record of obstruction going back to President Obama’s first days in office.  The unprecedented blockade against Garland is only the apex of a pattern that has gone on for years.

PFAW

A Circuit Court Nominee for Mitch McConnell to Consider

Two days after nominating Rebecca Haywood to the Third Circuit, and one day after nominating Merrick Garland to the Supreme Court, President Obama today continued to work to make sure that our nation’s appellate vacancies are filled with qualified judges.  Specifically, he has nominated Kentucky Supreme Court Justice Lisabeth T. Hughes to the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee.  Upon confirmation, she would become the first woman from Kentucky on the 6th Circuit.

This seat has been vacant since Judge Boyce Martin retired back in 2013.  The court’s caseload is so heavy that the Administrative Office of U.S. Courts has officially designated the vacancy as a judicial emergency.

This nomination comes after long and extensive consultations with Senate Majority Leader Mitch McConnell and Rand Paul, the nominee’s two home state senators.  In fact, press reports from more than two years ago noted that Justice Hughes was being vetted by the White House.  No one can credibly claim that the president didn’t engage in adequate consultation.

For six years as Minority Leader and now as Majority Leader, McConnell has done everything he can do obstruct President Obama’s judicial nominees.  Even as Minority Leader, he was able to needlessly block votes on highly qualified consensus nominees for months.  As Majority Leader, it is even easier to cause needless delay in floor votes, and McConnell’s Senate confirmed only 11 judges last year, the lowest number since 1960 (when there were hundreds fewer judgeships to fill).

McConnell has already led his party to say they will refuse to consider Merrick Garland’s Supreme Court nomination, a position so absurd and so widely unpopular that several cracks have already appeared in the party’s wall of obstruction.  We certainly hope that McConnell doesn’t show similar partisanship with Justice Hughes’s nomination.  There is a judicial emergency that needs to be filled, and a qualified nominee stands ready to fill it.

PFAW

GOP's Newest Defense of SCOTUS Obstruction Falls Apart

GOP talking points have continued to fall apart upon even minimal reflection and scrutiny, only to be revised and discredited yet again.  That is not a surprise, since they were so hastily thrown together as a post-hoc justification for a political decision Mitch McConnell made with unseemly haste as soon as he heard that Justice Scalia had passed away.

Now Republicans are trying out some new iterations in a desperate attempt to find some rationale to justify their decision to not do their job and consider – or even meet with – the president’s nominee for the Supreme Court.

For instance, Sen. Orrin Hatch says:

although in recent years it’s become customary to hold hearings on Supreme Court nominations, for the first 130 years of our nation’s history the Senate never held a hearing on any Supreme Court nominee

They didn’t have hearings, but that doesn’t mean the Judiciary Committee and Senate simply ignored the nomination.  It just means the Judiciary Committee and full Senate did their job and fully considered the merits of the nominations without feeling there was a need for hearings at the beginning of the process.  That is a far cry from today, when not having committee hearings means the Senate not taking any actions whatsoever to consider the nomination.  The senator’s argument is so pitifully irrelevant as to show that the GOP is desperate to trick the American people into thinking there is some principle behind their decision.

Hatch also says:

And a justice has never died in office this late in a term-limited President’s last year, when voting on the President’s successor has already begun.

As GOP talking points are repeatedly refuted by fact, they keep modifying them.  Before, they were suggesting there was no precedent for SCOTUS confirmations in an election year.  As Justice Kennedy can attest, that simply is not true.  Now they add more detail – when the vacancy is due to death, this late in an election year, but only an election year where the president is term-limited.  Of course, presidents were not term limited until the 22nd Amendment was adopted in 1951 (when Sen. Hatch was 16), so as a historical example, it conveniently ignores the vast majority of American history.

It also implicitly refutes the GOP’s own previous suggestion that they were acting in conformity with tradition.  If their newest TP is that this is a situation that has never arisen before (given their narrowing of the conditions), then they are also admitting that their decision to do their job is without historical precedent.  And they are right, as Lindsey Graham has candidly acknowledged.

Hatch also picks out a completely irrelevant historical example to justify inaction on the part of Senate Republicans:

In one case, Congress even abolished a Supreme Court seat rather than confirm the President’s nominee.

He is referring to a nomination by Andrew Johnson, where one house of Congress had already passed the bill eliminating the seat before the nomination was even made.  Eliminating a seat is action, not inaction.  Republicans are not talking about exercising congressional authority to establish the number of seats on the Supreme Court.  To the contrary, they are talking about eliminating the president’s constitutional authority to make nominations to fill the seats that Congress has established.  They want to keep the seat in existence, but just have it occupied by a justice selected by someone other than the person Americans already elected to fill it.

While Senate Republicans continue to throw out new post-hoc justifications in the hopes that something will stick, President Obama is doing his job.  Today, he is nominating someone to the Supreme Court.  Now the Senate needs to do their job and give the nominee timely consideration.

PFAW

Some People Are Still Doing Their Job on Judges

President Obama has nominated Rebecca Haywood of Pennsylvania to fill a vacancy on the Third Circuit Court of Appeals that opened last July.  She would bring to the bench her many years of experience with the U.S. Attorney’s office in the Western District of Pennsylvania, where she is now Chief of the Appellate Division.  If confirmed, she would be the first woman of color to ever serve on the Third Circuit.

“If confirmed.”  It’s up to the Senate to thoroughly vet the nominee and vote on whether to confirm her.  Yet Senate Republicans who are refusing to #DoYourJob with any Supreme Court nomination have also been bottling up President Obama’s lower court nominees, as well.  There are already five other circuit court nominees who have yet to be granted hearings before the Judiciary; some have been waiting for more than two months already.

The bottleneck must end.  The president continues to do his job by nominating qualified jurists to serve on our nation’s courts.  Haywood and all of the other judicial nominees should receive the timely and fair consideration contemplated by the Constitution.

PFAW

Ron Johnson's Revisionist History

There’s good news and bad news regarding Wisconsin Sen. Ron Johnson and the longtime effort to fill that state’s vacancy on the Seventh Circuit, which has been empty for more than six years.

The good news is that, almost two months after Donald Schott’s nomination, Johnson has at last said he has signed his “blue slip” of approval to the Judiciary Committee.  Under current committee practice, both home state senators must give their approval for the committee to process a circuit or district court nomination.  Since Sen. Tammy Baldwin had already submitted hers, there should be no more obstacles to finally letting Schott have a hearing.

The bad news is that Johnson’s statement announcing this is also a needless attack against any number of Democrats, including Baldwin.  He also offers a surprising explanation for why it took so long for their nominations commission to get around to seeking qualified individuals for this seat:

“The bipartisan compact worked beautifully, filling the Western District vacancy as well as a vacancy that opened on Wisconsin's Eastern Federal District Court.

“Our commissioners then began working on the appeals court vacancy. We worked on this last because it was not a judicial emergency and we knew there would be a smaller pool of applicants”  [emphasis added]

Sen. Johnson may not have wanted the commission to work on the circuit vacancy, but he is apparently not being accurate when he says what his reasons were. That’s because the Seventh Circuit seat was a judicial emergency when the commission began its work and all through the time that it was considering potential district court nominees.  Here is the chronology:

Johnson’s proffered reason for putting off work on filling the circuit seat for as long as possible certainly does not appear to be completely accurate.  Perhaps he should tell his constituents the real reason.

In the meantime, he could do Wisconsinites a great favor by pressing his fellow Republican, Judiciary Committee Chairman Chuck Grassley, to hold Schott’s confirmation hearing as soon as possible.  This seat has been vacant for far too long.

PFAW

Will Grassley Quit as Judiciary Chair?

Imagine if Senate Republicans meant what they said when they come up with rationales to explain their unprecedented obstruction of the regular process for filling Supreme Court vacancies.  We’d see a news story like this:

The partisan fight over replacing Supreme Court Justice Antonin Scalia took a dramatic and unexpected turn today when Republican Chairman Chuck Grassley stepped down as chairman and turned control of the committee to the Democrats.

Grassley told surprised reporters that he was acting in order to be consistent with the standard he and his fellow Republicans have been using as a rationale to deny President Obama the right to nominate the next justice, or to hold a hearing for any such nominee.

When today’s conversation with reporters began, no one expected any surprises.  Grassley has been unable to explain when or how the constitutional provision that the president serves a four-year term was changed to three years.  Nor has he even tried to explain how the American people’s overwhelming reelection of Barack Obama was, in reality, a call for him not to exercise the powers of his office.  No one expected him to come up with reasonable responses to these criticisms.  The surprise came when a reporter asked Grassley if he was putting party politics over the interests of his constituents:

“My constituents?  My only constituent is my party leader, Mitch McConnell, here in Washington.  I actually have no constituents in Iowa.  None.  Zero.  When they reelected me to a six-year term in 2010, I fully understood that I would not be able or expected to exercise the prerogatives of my office during the sixth year.  I am running for reelection this November, and the people of Iowa deserve a voice in how their senator will react to a potential Supreme Court nomination, or, in fact, to any federal judicial nomination coming from the White House.  Remaining as chairman of this committee would deny Iowans their voice.

“So I am stepping down as chairman, and while I will attend hearings and business meetings, I will cast no votes.”

Grassley mentioned two fellow Republican committee members, Mike Lee of Utah (who is in the sixth year of his six-year term and is running for reelection) and David Vitter of Louisiana (who chose not to run for reelection this year), saying he fully expects them to follow his principled position and refrain from casting votes in committee.

Thus, while the partisan breakdown of the Senate Judiciary Committee remains 11-9 in the Republicans’ favor, Democrats now hold a 9-8 advantage on any matter involving committee votes, including the selection of a new chairman.  Senate Democrats have not subscribed to the GOP view that a political party can unilaterally amend the Constitution to shorten officials’ terms or trim those officials’ constitutional powers and responsibilities.  So Democratic committee members up for reelection this year intend to serve their entire six-year terms, as the Constitution spells out and as voters in their states expected when electing them in 2010.

It is currently unclear whether other Senate Republicans will similarly abdicate their right to vote in committee and on the floor in order to exercise the principle they are demanding in the context of filling the current Supreme Court vacancy.

PFAW

Unlike Senate GOP, Obama Continues to Do His Job on Judges

Senate Republicans insist they will not even consider any Supreme Court nominee put forth by the president of the United States, prompting calls from around the country: #DoYourJob!  But that’s not their only campaign of obstruction aimed at the judiciary. They’ve been abdicating their responsibilities to consider and vote on lower federal court nominees, as well.  Last year’s total of only 11 judicial confirmations is the lowest in more than 50 years (and there were a LOT fewer judgeships to fill back then).

Fortunately, President Obama and the White House are continuing to take their responsibilities seriously.  Just today, Obama nominated federal district court judge Lucy Koh of California to fill a vacancy on the Ninth Circuit Court of Appeals.  Two weeks ago, he nominated judge Abdul Kallon of Alabama to fill a longtime vacancy on the Eleventh Circuit.  In January, he nominated Jennifer Kelmetsrud Puhl of North Dakota to serve on the Eighth Circuit, as well as Donald Schott of Wisconsin and Myra Selby of Indiana for the Seventh Circuit.  The president is also continuing to make nominations for federal district courts, as well.

The White House does not need to be told to #DoYourJob.  They’re already doing it, just as the Constitution contemplates.  Now Senate Republicans need to do their jobs on staffing our federal district courts, circuit courts, and, of course, the Supreme Court.

PFAW