NPR reports today on President Obama’s unprecedented efforts to bring diversity to the federal bench:
The White House says almost half of the 97 candidates who have won confirmation during Obama's presidency are women; about a quarter are black. And Obama has nominated four openly gay people, more than any other president. He's also doubled the number of Asian-American judges on the bench.
Obama continued that pattern earlier this week when he nominated Adalberto Jose Jordan to serve on the U.S. Court of Appeals for the 11th Circuit and Miranda Du, an Asian American who lived in a refugee camp in Malaysia for almost a year as a child before coming to the U.S., for the district court in Nevada.
But that strategy may have a cost, says Caroline Fredrickson, who leads the American Constitution Society and has been following the judge nominees closely.
"Obama is nominating many more diverse nominees than his predecessors ... strikingly so," Fredrickson says. "But the nominees are not getting confirmed with the same kind of success."
Some of the longest waiting nominees, Louis Butler of Wisconsin, Charles Bernard Day of Maryland and Edward Dumont of Washington happen to be black or openly gay.
"For women and minorities, it's just been a bigger hill to climb before they actually get a vote," Fredrickson says. "And so for whatever the reasons, the facts speak for themselves."
Yes, the facts do speak for themselves. PFAW, in a memo released Tuesday, calculated that so far, the president’s women and minority nominees have waited on average 22 percent longer for a Senate confirmation vote than white men.
But the Senate’s slow pace confirming women and minority nominees has fed into a larger, equal opportunity obstruction agenda. As of Tuesday, there were 89 open seats on the federal judiciary, 37 of which had been designated as “judicial emergencies.” Pending on the Senate floor were 24 nominees who the Senate could easily have voted on, 21 of whom had no recorded opposition whatsoever in committee. Yet Republicans allowed a vote on only four of them. Twenty are still waiting for votes allowing them to take their posts.
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.
The Blog of the Legal Times is reporting that Senate Majority Leader Harry Reid is planning to call Senate Republicans on their obstruction of judicial nominees and break the gridlock that has kept four of these nominees pending, in some cases for over a year. Reid will attempt to stop the Republican filibuster of Ninth Circuit nominees Goodwin Liu and Edward Chen, Rhode Island District Court nominee John McConnell, and Wisconsin District nominee Louis Butler.
This is a critical moment for these nominees, who despite support from their home-state senators and endorsements across the ideological spectrum, have for various reasons been branded as “too extreme” by obstructionist Republicans in the Senate. McConnell has been up against an expensive lobbying campaign from the Chamber of Commerce, which objects to his work as a public interest lawyer representing victims of lead paint poisoning. Butler has been up against business interests who don’t think he was friendly enough to them when he was on the Wisconsin Supreme Court. Chen was accused by Jeff Sessions, the top Republican on the Senate Judiciary Committee of having an apparently disqualifying “ACLU chromosome.”
Liu’s nomination has been the subject of the most partisan squabbling. Liu’s main obstacle, it seems, has been his own brilliance: some on the Right worry that if he makes it on to the bench, he could eventually become a Supreme Court nominee. But Liu’s nomination is backed by legal luminaries from across the ideological spectrum, including former Bush White House lawyer Richard Painter, who today wrote another plea for the Senate GOP to break the judicial gridlock and at least take a vote on Liu’s nomination:
In any event, nominees who should not be controversial, including Goodwin Liu (I have made previous posts here on his nomination), are described as radical activists, the same tactic that advocacy groups deployed to mischaracterize many of President Bush’s nominees.
Public opinion of Members of Congress (both parties) these days is lower, far lower, than it was in the days when Senator Henry Cabot Lodge used just the right term to describe what he saw going on when Senators filibustered legislation. Those of us who care about the future of the judiciary should make it clear that the delay must stop.
This does not mean the Senators should vote "yes". They can vote "no". But they should vote.
Specific nominations aside, the federal judicial system in general has taken a drubbing under the Senate GOP’s refusal to confirm nominees. A new report from the Alliance for Justice has found that the number of vacancies in the federal judiciary has nearly doubled since President Obama took office, and that the number of open seats designated as “judicial emergencies” has risen from 20 to 50, affecting 30 states.
Confirmation votes will become much more difficult next year, with Democrats hanging on to a much slimmer majority in the Senate. Now’s the time to push through the nominees whom the GOP has been the most eager to obstruct.
The Senate Judiciary Committee this morning voted to approve seven federal judicial nominees. Four of these nominees are Judiciary Committee pros by now—they’ve already been approved by the committee, but were blocked by Senate Republicans, and had to start the nomination process all over again. Two are going through the process for the third time.
So what high ground is the GOP standing on in their months long blocking of these four nominees and insistence on holding the same debate multiple times?
Not to mention the record of former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to stop his reelection.
Then there’s the outrage against U.S. Magistrate Edward Chen for his work fighting discrimination against Asian Americans for the American Civil Liberties Union.
And then, of course, there’s the all-out battle against Ninth Circuit Appeals Court nominee Goodwin Liu. As the New York Times editorial page points out today, the GOP’s resistance to Liu centers mainly around the fear that he’s so qualified, he might end up on the Supreme Court.
And these are just the nominees to which the GOP has been able to articulate some sort of objection. There are now 23 nominees waiting for votes on the Senate floor--17 of them made it through the Judiciary Committee without the objection of a single Republican.
Witness the trademark efficiency of the Party of No.
Sen. Sheldon Whitehouse just made a forceful presentation at the Senate Judiciary Committee business meeting about the unprecedented obstruction currently being waged by Republicans against judicial nominees. The statistics are powerful: from 1949, when Senate rules were changed to provide for cloture votes on nominees, until 2009, only three cloture motions were filed on District Court nominees, and one of those was withdrawn.
By contrast, three District Court nominees were voted out of Committee for a second (John McConnell) or third (Edward Chen, Louis Butler) time today after Republicans refused to permit votes on their nominations and forced their re-nomination by the President--Exhibit "A" of this unprecedented obstruction.
In a “Critical Judiciary Alert” released today on Facebook (where else?), Senator Jeff Sessions went on the attack against five of President Obama’s judicial nominees that the GOP has worked overtime to obstruct.
The whole piece is a fine example of the out of context scare quotes and blatant distortions that are the stock in trade for Senate Republicans trying to block President Obama’s judges. But it seems that Senator Sessions can’t even keep his arguments in line for the length of one piece.
Take for instance, his attacks against Jack McConnell, a nominee for the District of Rhode Island.
After McConnell’s questionable theory of liability against lead paint manufacturers was unanimously rejected by the Rhode Island Supreme Court, he publicly attacked the decision as letting “wrongdoers off the hook,” revealing a preference for outcome-driven judicial decisions.
Setting aside the fact that fighting against the ingestion of lead paint by children is apparently not a good thing in the eyes of the GOP, Sessions clearly doesn’t like “outcome-driven” judicial decisions (although any lawyer not looking for a positive outcome for his client, as McConnell was doing, seems like a pretty poor attorney to me.) Got it. Outcome driven rulings = bad.
But then, take a gander at Sessions’ attack on Louis Butler, a nominee for the Second Circuit and a former state judge.
In one case, he held that a manufacturer could be held liable for injuries from a product that, as the dissent explained it, the manufacturer “may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”
Why, it sounds like Sessions doesn’t like the outcome! And this unhappy outcome is apparently reason to think the judge is doing a poor job. Outcome driven rulings = good?
So what does Senator Sessions want? Outcomes that go his way, or judges who ignore political pressure to rule according to the law?
Of course, there might be a third option: It doesn’t matter. Senator Sessions will say whatever it takes to block judges nominated by President Obama.
The Brennan Center for Justice, Justice at Stake, and the National Institute on Money in State Politics released a startling report today on the skyrocketing cost of state Supreme Court elections. The amount of money spent on state judicial races in the 38 states that have them has more than doubled in the 2000-2009 decade compared to the decade before, the report finds—and most of it has come from big spenders with big agendas, such as the Chamber of Commerce and trial lawyers’ groups.
The sway of big money over judicial elections, the report argues, is only likely to intensify in the post-Citizens United world, where big spenders will be able to pour more money into judicial races while “using shell organizations to keep their role out of the public eye.”
Take the case of Louis Butler, a Wisconsin Supreme Court justice who was nominated to fill a vacancy in the court in 2004, and four years later ran for a full term. Shortly after losing the election in 2008, Butler described his experience in a panel discussion at Georgetown. NPR reports:
"Wisconsin Manufacturers and Commerce decided at that point that: 'OK, we've had this court for all these years, we never had to worry about how the court voted. We get this new guy on the court, and all of a sudden we lose these three cases,' " Butler said. " 'He's gotta go.' "
And go he did, with the help of ads that tried to portray Butler, a former public defender, as soft on crime. One ad sponsored by the manufacturers and commerce group, the state's largest business lobby, began this way: "When our children go to school, they need to be safe. In our homes and neighborhoods, we need to be safe. Our sheriffs and district attorneys are on the front lines, protecting us. And you know what? Our judges need to know they also must protect us."
Executives at Wisconsin Manufacturers and Commerce, the state's largest business advocacy group, say they were only protecting themselves when they spent $1 million on television ads against Butler. James Buchen, an executive at Wisconsin Manufacturers, said the court under Butler had ruled to expand punitive damage awards and malpractice claims under a fragile 4 to 3 majority.