As we like to remind anyone who will listen, the current GOP senate has been shameless in its enthusiasm for obstructing judicial nominees just for the sake of obstruction. For instance, a PFAW memo on August 2 reported that of 24 nominees then waiting for confirmation votes, 21 had been voted through the Senate Judiciary Committee with no recorded opposition. Instead of sending through at least the unopposed nominees in a voice vote and moving on with its business, the Senate decided to keep these potential jurists off the bench for as long as possible – despite the pressing problem of unfilled judicial seats leading to slowed down justice. Ultimately, 4 of those nominees were confirmed by the Senate before it left for its August recess, and 20 remain waiting. (The Washington Post this morning lamented that such “gamesmanship is not only frustrating but also destructive”)
This sort of thing is a clear example of obstruction for obstruction’s sake. But what about the nominees who do face some GOP opposition? Last week, The Atlantic’s Andrew Cohen took an in-depth look at some of President Obama’s nominees who were ultimately confirmed by the Senate, but who received more than 25 “no” votes. The reason? Most were opposed because of a record fighting for civil liberties or against big corporations. Here are a few of Cohen’s examples:
7th U.S. Circuit Court of Appeals Judge David Hamilton (Votes 59-39). Even though his local Federalist Society endorsed this nephew of former Congressional leader Lee Hamilton, Senate Republicans mostly didn't because, as a trial judge, Hamilton had issued this 2005 ruling which had infuriated the religious right. Citing Supreme Court precedent, Judge Hamilton had ruled that Indiana's legislative prayer before each session could no longer be "sectarian" and regularly invoke the name of Jesus Christ.
Northern District of Ohio Judge Benita Y. Pearson (Votes 56-39). The first black female federal jurist in Ohio almost didn't get the gig. The precise reasons why are unclear. The People for the American Way suggested that she was a member of an animal rights group and thus earned the wrath of those in the cattle industries -- although 39 "no" votes is quite a lot of beef to have against a pioneering jurist.
District of Colorado Judge William J. Martinez (Votes 58-37). By contrast, it is not hard to understand why this Mexico-born nominee roused so much Republican opposition on the floor of the Senate. Before he was nominated, Martinez advised the Americans with Civil Liberties Union and was a lawyer for the Equal Employment Opportunity Commission (just like Clarence Thomas before him, only Justice Thomas' EEOC experience evidently was a boon for his nomination). Of nominee Martinez, Sen. Jeff Sessions (R-Ala.) said: "It seems that if you've got the ACLU DNA you've got a pretty good leg up to being nominated by this president."
District of Rhode Island Judge John J. McConnell (Votes 50-44). It's also fairly clear why Judge McConnell almost didn't make it onto the bench. Senate Republicans didn't like him because the U.S. Chamber of Commerce didn't like him because, as a lawyer, McConnell had successfully sued Big Tobacco and fought for those harmed by lead paint. Evidently that's five Republican votes more serious in the Senate than ticking off Big Beef.
Northern District of California Judge Edward M. Chen (Votes 56-42). Like Judge Martinez, Edward Chen evidently was touched with the "ACLU gene," which rendered him objectionable to Senate Republicans. Sen. Charles Grassley (R-Iowa), whose state's Asian population is nearly three times lower than the American average, voted against Chen because he thought the well-respected former magistrate judge employed the "empathy standard" of judging.
District of Oregon Judge Michael H. Simon (Votes 64-35). Harvard educated? Check. Prior government experience with the Justice Department? Check. So why 35 "no" votes? Because Simon had worked for the ACLU. The seat he took on the federal bench, reported the Oregonian, had been vacant for 664 days, two months short of two years. How would you like to have been a litigant in Oregon during that time?
All of these nominees were ultimately confirmed – but not after plenty of stalling and debate over the value of “ACLU DNA” or of holding big corporations accountable for their actions. When we talk about the many nominees who are unopposed yet unaccountably stalled, it’s important to remember that the few nominees who do face GOP opposition don’t always face that opposition for the most convincing of reasons.
Back in September, we wrote about Sen. Jeff Sessions’ discovery of what he called the “ACLU chromosome”—according to the senator, a common genetic defect that disqualifies bearers from the federal judiciary.
Well, Dr. Sessions is back at it. TPM has this video of Sessions ranting yesterday about the supposed prevalence of the “ACLU chromosome” in President Obama’s judicial nominees:
As Sen. Mark Udall later pointed out on the Senate floor, it’s unlikely that Sen. Sessions would have a similar reaction to a “Federalist Society chromosome”. While a few of President Obama’s nominees have had a history working with the ACLU—for instance, Edward Chen of California who worked to prevent discrimination against Asian Americans—President Bush made a point of packing the courts with judges who belonged to the far-right Federalist Society.
It’s absurd arguments like Sessions’ that are keeping qualified, well-respected nominees like Chen from even receiving an up or down vote in the Senate. While reports say that the Senate GOP has finally agreed to vote on 19 judicial nominees who they have been stalling despite little or no opposition to their confirmations, four nominees, including Chen, will be left out to dry without even a vote.
And, for the record, the ACLU had this to say about Sessions’ rant:
"Senator Sessions' reference to 'ACLU DNA' in President Obama's judicial nominees should be greeted as a welcome discovery by all Americans, regardless of party. For 90 years, the ACLU has defended the rights enshrined in the Constitution for everyone, regardless of their political beliefs. While not everyone agrees with us on every issue, Americans have come to rely on the ACLU for its unyielding dedication to principle."
"There is a long record of highly respected ACLU-affiliated lawyers who have been appointed to the federal bench, including luminaries such as Supreme Court Justices Thurgood Marshall, Felix Frankfurter, Arthur Goldberg and Ruth Bader Ginsburg. All have demonstrated their dedication to the Bill of Rights in important decisions supporting freedom of speech, the right to due process and gender and racial equality. There are also dozens of highly regarded district court and appellate court judges who have served or serve now on federal benches throughout the nation. Their ACLU background has helped them bring to the judicial system a steadfast commitment to constitutional values and an understanding of the critical role that the judiciary plays in safeguarding them."
"If you ask us, ACLU chromosomes make for a pretty remarkable gene pool," she added.
White House Press Secretary Robert Gibbs told reporters yesterday that pushing through stalled judicial nominations would be one of the president’s priorities in the last days of the lame duck session of Congress.
People For released a memo last week detailing why it’s important for the Senate to confirm all 38 stalled nominees immediately:
As the end of the 111th Congress approaches, 38 judicial nominees approved by the Senate Judiciary Committee are waiting for a vote on the Senate floor. Many of the nominees have been waiting for months, while a few have been waiting for almost a year.
Of these nominees:
- 21 (55%) have been nominated to fill emergency slots.
- 29(76%) are women or people of color.
- 29 (76%) came out of committee without opposition and an additional 3 came out of committee with significant bipartisan support.
There’s no question that a majority of senators will vote to confirm every one of these nominees, and it’s unlikely that any of them would fail to garner the 60 votes necessary to overcome procedural hurdles that the GOP has deployed on virtually every function the Senate has performed since President Obama took office. (This is doubly true considering that many members of the GOP have publicly asserted that filibusters of judicial nominees aren’t just wrong, but actually unconstitutional.)
Now, Senate Minority Leader Mitch McConnell seems to be offering Democrats a devil’s bargain: confirm a number of the nominees that don’t have any opposition at all, but send the rest back to the White House at the end of the Congress. The group being sent back to the White House will almost certainly include four of the eminently qualified – and mainstream -- nominees who have had the misfortune of being tagged as “controversial” by Republicans:
- Rhode Island nominee John McConnell, who has been opposed by the US Chamber of Commerce for his willingness to represent victims of lead paint poisoning.
- Former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to prevent his reelection.
- U.S. Magistrate Edward Chen, who has been attacked for his work fighting discrimination against Asian Americans for the American Civil Liberties Union.
- And then, of course, Ninth Circuit Appeals Court nominee Goodwin Liu. As the New York Times editorial page has pointed out, the GOP’s resistance to Liu centers mainly around the fear that he’s so qualified, he might end up on the Supreme Court.
Senator Reid and his colleagues should call Senator McConnell’s bluff and start holding cloture votes on these nominees. The process will take time, but adding time to the calendar is entirely within the Democratic leadership’s purview. By confirming McConnell, Butler, Chen, and Liu, Senators can make clear that they will fight the unprecedented and enormously damaging obstruction of highly qualified judicial nominees. Walking away from these nominees delivers the confirmation process to the GOP: they’ll effectively block confirmable jurists without even having to go on record with their obstruction.
President Bush worked hard to pack the courts with far-right, Federalist Society judges. Confirming Obama’s picks will not only fill vacancies causing judicial emergencies and add much-needed diversity to the federal bench, it will prevent the federal bench from continuing to be dominated by Bush’s far-right appointments.
If there’s one theme that’s prevalent here at Netroots Nation, it’s that elections matter—but what you do after elections matters more.
In a great panel discussion this morning, six judiciary-watchers discussed why the courts should matter to progressives, and why it’s dangerous when they don’t.
Pam Karlan, a professor at Stanford Law school who is frequently mentioned as a potential Supreme Court nominee herself, put it this way: “However much progressive legislation we get from Congress, unless it gets enforced every day by district courts, it’s just words on paper.”
Republicans have successfully made the courts an issue for their base, and are trying to work it to their advantage now that they’ve lost power in Congress and the White House. The Philadelphia Inquirer reported earlier this month that nearly 40% of federal judges currently serving were appointed by George W. Bush, whose habit of recruiting from the conservative Federalist Society led to an intentional right-ward drift on courts across the country.
In their effort to keep the courts on the Right, Republicans are taking full advantage of their well-practiced obstruction skills.
Nan Aron, president of Alliance For Justice described the Republican game plan to keep the courts: “Hold seats open until a Republican president comes in and he’ll fill them in a New York minute.”
Which is exactly what Senate Minority Leader Mitch McConnell is trying to do as he repeatedly refuses to hold votes on confirming President Obama’s judicial nominees. He’s making a deliberate effort to stall all Senate business, but also a calculated plan to keep seats on the federal bench empty for as long as possible with the hope that they won’t be filled by progressives.
What courts do every day—from the Supreme Court down—matters to ordinary people. Indeed, courts are central to our ability to hold corporations and other special interests accountable for harmful behavior. Judicial appointments are essential to securing corporate accountability for environmental safety (just look at the Fifth Circuit, where the judges making important decisions about oil drilling regulation are closely connected to the oil industry); they’re essential to holding businesses accountable for how they treat workers (see Rent-a-Center v. Jackson); and, of course, they’re a critical part of ensuring our civil rights.
Dahlia Lithwick, who covers the Supreme Court for Slate, pointed out that “conservatives have been laser-focused on the court,” while progressives don’t always connect the issues we care about with the courts that ultimately decide their fate.
It's time to change that.
UPDATE: You can watch the full discussion in the video above.
Individual Rights, Access to Justice Threatened
President Bush's final State of the Union address will in part be an effort to shape the public view of his presidency. But here's something he won't say: a long-lasting part of his legacy will be the weakening of Americans' rights and legal protections due to the dangerous state of the federal judiciary created by judges he has placed on the federal bench.