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.

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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.

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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.

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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.

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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.

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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.

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On Judges, the Worst Year Since 1960

At the end of the year, Senators of both parties often reach agreements to clear the decks of consensus judicial nominees.  At least that was often the case before the Obama-era Republican Party went into “resistance movement” mode and set out to sabotage all things Obama.  Now, as Republicans end their first year in control of the Senate, there are 13 consensus circuit and district court nominees waiting for a floor vote… and they have agreed to confirm exactly zero of them before leaving town.

What they have agreed to is the following:  (1)  unopposed Third Circuit nominee Phil Restrepo, approved by the Judiciary Committee back in July, will finally have his confirmation vote on January 11; (2) Majority Leader Mitch McConnell will schedule votes on four unopposed district court nominees some time in January or February, before the President’s Day recess; (3) Republicans will not send any judicial nominations back to the White House, which would have forced them to be renominated and re-approved by committee.

Republicans also gave up in their efforts to bypass all blue-state nominees and let red-state ones skip over them toward confirmation.  The nominees whose votes have been agreed to are highlighted below.  They are not being taken in order, but ones from both blue and red states alike are being skipped.

  1. L. Felipe Restrepo (PA, Third Circuit) – July 9
  2. Waverly Crenshaw (TN) – July 9
  3. Wilhelmina “Mimi” Wright (MN) – September 17
  4. John Vazquez (NJ) – September 17
  5. Paula Xinis (MD) – September 17
  6. Brian Martinotti (NJ) – October 29
  7. Robert Rossiter (NE) – October 29
  8. Edward Stanton (TN) – October 29
  9. Rebecca Goodgame Ebinger (IA) – November 5
  10. Leonard Strand (IA) – November 5
  11. Julien Neals (NJ) – November 5
  12. Gary Brown (NY) – November 5
  13. Mark Young (CA) – November 5

So while President Bush had 40 judges confirmed in 2007 when Democrats retook the Senate, the GOP-controlled Senate will end the year confirming only 11 of President Obama’s judges.  This is the lowest number of circuit and district court judges confirmed in a year since 1960, the end of the Eisenhower era, when there were fewer than half the number of judgeships than there are today.

All 13 of the above nominees could be confirmed today.  They should be confirmed today.  That they won’t be is a testament to the little regard Senate Republicans hold for the federal court system that guarantees the rights of every American.

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Senate GOP Floats Plan to Politicize Judges Even More

Yesterday, Senate Republicans – who have allowed only 11 judicial confirmation votes the entire year – at long last agreed to schedule a vote for consensus Third Circuit nominee L. Felipe Restrepo.  The agreement came five months after he cleared the Judiciary Committee unanimously.  As if that needless wait weren’t already evidence of partisan obstruction, Republicans agreed to the vote only if it could be delayed by more than another month, until January 11.

And today, Roll Call is reporting on GOP plans to ramp up partisanship in judicial nominations even more:

Yet there is a decent chance Congress will go home for the year without [confirming anyone].  That would be a signal the process of confirming judges, already at its slowest pace in more than half a century, is grinding to a halt earlier than ever in the life cycle of a modern two-term president.

It remains likelier that, before adjourning next week, the majority Republicans will agree to create a handful of new judges — but perhaps only [Tennessee nominee Waverly Crenshaw] and four more who would also join U.S. District Courts in states represented by two GOP senators.

Currently, there are 13 circuit and district judicial nominees who have been waiting for a confirmation vote, some since as long ago as July.  When Majority Leader Mitch McConnell finally schedules a vote on such a nominee, it has usually been in the order that they came out of the Judiciary Committee (and, when nominees advance on the same day, the order that they are listed on the Senate Executive Calendar).  Below is the list of nominees, in order, including the date they were approved by the Judiciary Committee and became eligible for a confirmation vote.  All but Restrepo would serve on district courts.  The list is color coded by partisanship of home state senators (with Restrepo the only one represented by both a Republican and a Democrat).

  1. L. Felipe Restrepo (PA, Third Circuit) – July 9
  2. Waverly Crenshaw (TN) – July 9
  3. Wilhelmina “Mimi” Wright (MN) – September 17
  4. John Vazquez (NJ) – September 17
  5. Paula Xinis (MD) – September 17
  6. Brian Martinotti (NJ) – October 29
  7. Robert Rossiter (NE) – October 29
  8. Edward Stanton (TN) – October 29
  9. Rebecca Goodgame Ebinger (IA) – November 5
  10. Leonard Strand (IA) – November 5
  11. Julien Neals (NJ) – November 5
  12. Gary Brown (NY) – November 5
  13. Mark Young (CA) – November 5

Under the scheme being floated by Senate Republicans, “their” nominees would skip over four district court nominees who come from states with Democratic senators, even though the blue-state nominees have been waiting longer for a vote.  Individuals and businesses in Minnesota, New Jersey, and Maryland would be punished by Mitch McConnell for electing the “wrong” senators, yet another escalation by the GOP in their politicization of the judicial confirmation process.

Every nominee waiting for a vote has been fully vetted by the Judiciary Committee and advanced without opposition to the full Senate.  Each should have a vote before senators go home.  It is bad enough that Restrepo has been needlessly put off to January.  Gaming the list to disfavor certain nominees based on which party their state’s senators belong to would add insult to injury.

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Will Nebraska's Senators Help Our Federal Courts?

Nebraska has a judicial vacancy that has been open for more than a year, leaving fewer judges available to handle the state’s relatively heavy caseload.  Fortunately, there is a fully vetted nominee with strong bipartisan support who could fill that slot today.  Unfortunately, Robert Rossiter is stuck in the middle of a bottleneck deliberately engineered by Senate Republicans.  The question is whether Senators Deb Fischer and Ben Sasse, both Republicans, will exercise their influence with party leadership to clear up that bottleneck for the benefit of their fellow Nebraskans and the rest of the country.

At Rossiter’s confirmation hearing, Sen. Fischer spoke about urgency of filling the vacancy as soon as possible:

[Nebraska has] the most per-judgeship weighted filings among the eight states that have only three authorized judgeships and a single federal district.  With a small bench and a full docket, it is important that this federal district court is operating at full capacity.  Despite this fact, however, the judgeship that Bob has been nominated for has been vacant for more than a year.  [T]his court must be provided with the necessary resources to work efficiently[.] … I urge my colleagues to support Bob Rossiter’s nomination quickly so that he can put his outstanding intellect, skill, and judgement to work for the American people.

However, Majority Leader Mitch McConnell has needlessly forced all of President Obama’s nominees to wait for floor votes far longer than necessary, creating a bottleneck that delays everyone.  He has allowed only ten judicial confirmation votes so far this year, an absurdly small number that has caused judicial vacancies and judicial emergencies to skyrocket since Republicans took over the Senate.

When McConnell finally schedules a vote on a circuit or district court nominee, it has been in the order that they came out of the Judiciary Committee (and, when nominees advance on the same day, the order that they are listed on the Senate Executive Calendar).  Rossiter has many nominees ahead of him in the list of circuit and district court nominees currently waiting for a floor vote:

  1. L. Felipe Restrepo (PA, Third Circuit) – July 9
  2. Travis McDonough (TN) – July 9
  3. Waverly Crenshaw (TN) – July 9
  4. Wilhelmina “Mimi” Wright (MN) – September 17
  5. John Vazquez (NJ) – September 17
  6. Paula Xinis (MD) – September 17
  7. Brian Martinotti (NJ) – October 29
  8. Robert Rossiter (NE) – October 29
  9. Edward Stanton (TN) – October 29
  10. Rebecca Goodgame Ebinger (IA) – November 5
  11. Leonard Strand (IA) – November 5
  12. Julien Neals (NJ) – November 5
  13. Gary Brown (NY) – November 5
  14. Mark Young (CA) – November 5

So if Sens. Fischer and Sasse want to get help to the overburdened Nebraska federal court as soon as possible, they need to do more than just press McConnell to schedule a confirmation vote for Rossiter.  If they want to help their constituents in Nebraska, they need to press McConnell to immediately allow votes on all those judicial nominees ahead of Rossiter.  Like all 14 pending nominees, they have been fully vetted and face no opposition.  In fact, all 14 could and should be confirmed immediately.

There is no good reason that Fischer and Sasse can’t make sure Rossiter is confirmed by the time they go home for Thanksgiving.

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On Judges, GOP Senate Finally Breaks Into Double Digits

The Senate is scheduled to vote to confirm New York district court nominee LaShann DeArcy Hall late this afternoon.  She will only be the tenth judge confirmed this year, even though it’s already the week before Thanksgiving.

What explains this ridiculously low number?

It isn’t because this is the first year of a new administration, so that nominations weren’t made until several months into the year.  In fact, when the Senate convened this year, the Judiciary Committee immediately had eleven circuit and district court nominees from last year to consider, one of them being DeArcy Hall.  She isn’t the only 2014 nominee who still hasn’t been confirmed: Third Circuit nominee L. Felipe Restrepo is still waiting for a confirmation vote.

The low number of judicial confirmations also isn’t because the nominees are controversial.  Almost all of them faced no opposition whatsoever in the Judiciary Committee or on the Senate floor.  But that didn’t stop Republicans from slow-walking them at every step of the way.

Take Restrepo, for instance: He has the support of both his home state senators, one a Democrat and the other a Republican.  He had been unanimously confirmed to a district court judgeship in 2013, so the Senate had already done a thorough and recent vetting of his background.  Yet Senator Pat Toomey and Chairman Chuck Grassley collaborated to delay Restrepo’s committee hearing until seven months after his nomination.  He impressed the members of the Judiciary Committee and demonstrated to each one of them that he was highly qualified to serve on the Third Circuit, yet Grassley delayed a committee vote for two weeks without an explanation.  And for the more than four months since then, day after day after day, GOP leadership has refused to schedule a confirmation vote to let an unquestionably qualified jurist fill a vacancy that has been formally designated a judicial emergency.  Now more than a year has gone by since his nomination.

The low number of judicial confirmations also can’t be explained by a lack of need for judges.  Restrepo is hardly the only slow-walked nominee this year who would fill a judicial emergency.  In fact, the number of judicial emergencies nationwide has skyrocketed from 12 at the beginning of the year to 29 today (after DeArcy Hall is confirmed).  Similarly, the number of circuit and district court vacancies has risen dramatically, from 40 at the beginning of the year to 62 after today’s confirmation.

Even if every vacancy were to be filled tomorrow, there would still not be enough judges to ensure every American’s opportunity to have their day in court.  Judges are so overwhelmed that the Judicial Conference of the United States recommended in March of 2015 that Congress create five new circuit court seats and 68 new district court seats (as well as make permanent nine district court seats that are now temporary).  So filling vacancies is a priority.

Or at least it should be, if you value having an effectively functioning federal court system with fair, independent, and unbiased judges ensuring that everyone’s rights are protected.

But the Republicans’ strategy since President Obama took office has been to gum up the works as much as possible, to make the confirmation process as slow as they can get away with in order to maximize the number of vacancies available for the next (Republican) president to fill.  This has damaged our courts and coarsened our politics.

In addition to DeArcy Hall, there are 14 other circuit and district court nominees ready for a vote.  There is no reason not to act on every single one of them before the Thanksgiving recess.

PFAW