Earlier this week, Senate Republicans were harshly criticized for filibustering a highly qualified Cuban American with no committee opposition nominated for a seat on the Eleventh Circuit. Yesterday, they doubled down and set their sights on an unopposed district court nominee, Jesse Furman of New York. As we noted yesterday, the absurdity of the move cannot be overstated. The Senate GOP wasn’t just moving the goalposts, they were moving the entire football field.
It appears that the barrage of deserved criticism they received for this outrageous escalation in their war against the American judiciary has had an effect: It was just announced that the cloture petition will be vitiated (i.e., withdrawn). More than five months after Furman was approved without opposition by the Senate Judiciary Committee, he will finally get his day on the Senate floor. In turn, assuming he is confirmed, more New Yorkers will get their day in court.
This is a victory for every American who wants to protect our nation’s judicial system.
President Obama has announced the nomination of Jill Pryor to the Eleventh Circuit Court of Appeals. Pryor would fill a vacancy that has been declared an emergency by the Administrative Office of the U.S. Courts.
Pryor's legal skills are recognized by her peers. The Best Lawyers in America recognized her from 2009-2011, and Georgia Super Lawyers selected her as one of the "Top 100 Super Lawyers" in 2010 and 2011. In addition, she has served as president of the Georgia Association of Women Lawyers, as well as on the Georgia State Bar's Board of Governors.
Her peers are not alone in recognizing Pryor's qualifications. Georgia's Republican senators have both stated that she is qualified for a lifetime judicial appointment. In a January 24 letter to President Obama, Saxby Chambliss and Johnny Isakson recommended three attorneys to fill judicial vacancies in Georgia. They recommended Pryor for one of the two vacant seats in the Northern District of Georgia, but President Obama recognized that she has the skills and experience needed to serve on the Eleventh Circuit Court.
This seat has been vacant since August of 2010. We hope that Sens. Chambliss and Isakson, who clearly recognize Pryor's qualifications and judicial temperament, quickly give their approval for the Judiciary Committee to proceed to examine the nomination.
President Obama has gone out of his way to nominate to the federal bench highly qualified people who have earned the respect of Democrats and Republicans alike. That was clear in yesterday's Judiciary Committee hearing for Jeffrey Helmick to serve as a judge in the Northern District of Ohio.
That Helmick was nominated by Obama and recommended by Ohio's Sen. Sherrod Brown makes clear his support from Democrats. He was originally recommended to Brown and then-Sen. George Voinovich, a Republican, by a bipartisan committee. Rob Portman was elected to replace Voinovich in 2010, he has approved of Helmick’s nomination moving forward.
At the hearing, Sen. Brown discussed the strong support that state Republicans have offered the nominee. For instance, Jack Zouhary, a 2006 George W. Bush nominee, wrote in support:
You will find no better candidate than Jeff. He possesses the intelligence, the passion for our justice system, and the necessary temperament and people skills to be an outstanding district court judge.
Similar praise has come from Mark Wagoner, the Republican who chairs the Ohio's Senate's Judiciary Committee. Sen. Brown read an excerpt from Wagoner's letter of support:
[Helmick] is someone who has stood for principles, litigated honestly, and ably defended our constitutional system of government. These types of traits would make Mr. Helmick an outstanding federal judge.
Helmick should be confirmed quickly. But if the growing backlog of nominees languishing on the Senate floor isn't cleared up, Ohioans' access to justice will be at risk.
With Republican obstruction of qualified consensus judicial nominees showing no sign of abating, Senate Majority Leader Harry Reid has filed cloture on the nomination of Adalberto José Jordán to the Eleventh Circuit Court of Appeals. The vote to break the Republican filibuster is scheduled for Monday at 5:30.
Jordán is one of the 18 nominees stuck pending on the Senate floor because Republicans refuse to allow a yes-or-no vote to be scheduled. He received the highest possible rating from the American Bar Association, with a unanimous panel finding him well qualified. Judiciary Committee members who looked over his record agreed, voting unanimously to advance his nomination.
Senator Marco Rubio – Jordán's home state senator and a fellow Cuban American – strongly supports the nomination. As he told the committee, "I think his experience and his resume will speak for itself. ... As a community, we're very proud of Judge Jordán's nomination and we look forward to his appointment."
Jordán immigrated from Cuba when he was six and is the quintessential American success story. Since 1999, he has served ably as a federal district court judge in Miami, where he has presided over nearly 200 trials on a wide range of civil and criminal matters.
The Circuit that he would join desperately needs this vacancy filled, so much so that the Administrative Office of the United States Court has formally declared it a judicial emergency. In other words, there are so many cases and so few judges that Americans are not able to get their day in court.
This nomination has been languishing on the Senate floor since October 13. That was four months ago. Republicans have absolutely no excuse for this latest obstruction. Hats off to Sen. Reid for "calling the question" on this critical nomination. Next we need to turn our attention to the other 17 nominees on the Senate's calendar and the other nominees who will be reported by the Senate Judiciary Committee despite the Republicans' efforts to slow walk nominations in Committee as well.
Before Senate Republicans graciously allowed a vote this afternoon on one of the 19 long-pending judicial nominations – just one, mind you – they did something this morning, that, unfortunately has become all too routine in their relentless efforts to slow-walk judicial nominations: They needlessly delayed committee votes on four additional highly qualified nominees. Republicans won't even let them advance to the floor to languish there, but are delaying them in committee for no reason.
As they have done for all but five of President Obama's judicial nominees, committee Republicans this morning exercised their option to "hold over" (i.e., delay) votes on judicial nominees. The routine use of this hold, without explanation, without regard to actual questions about the nominee, and almost without exception, is unprecedented. And while the delay, likely to be one week, is not by itself enormous, it has become a predictable component of the overall mechanism of obstruction that Senate Republicans have created to keep our nation's courtrooms from functioning effectively for the American people.
Three of the four vacant seats are judicial emergencies, and the three nominees from states with Republican senators have those senators' strong support.
As PFAW has written before:
No matter who the nominee is, no matter how qualified, no matter if confirmation is needed to address a judicial emergency, all the nominees [who are held over in committee] have something in common: They were nominated by a Democratic president, and that is all the reason Republicans need to obstruct the process and sabotage the judicial branch of the United States government.
So the fact that the bottleneck at the Senate floor didn't get worse today is hardly cause to celebrate.
Several senators are taking the floor today to condemn the needless partisan obstruction that is harming America's judicial system and denying Americans their day in court. With more than 10% of every court vacant or soon to become vacant, the crisis is the worst sustained shortage in 35 years. Yet with Republicans refusing to allow the Senate to vote even on nominees who unanimously cleared committee months ago, the crisis is not being resolved.
There are now 19 pending nominees waiting for a floor vote. 17 were approved by the Senate Judiciary Committee with very strong bipartisan support, and 16 were approved without any opposition at all. Thirteen have been pending for three months or more, nine would fill vacancies classified as judicial emergencies.
The obstruction is also preventing us from having a diverse federal bench: 14 of the 19 pending nominees being denied a vote are women or people of color.
Sen. Patrick Leahy, chairman of the Judiciary Committee pointed out a few minutes ago who is being hurt the most by the obstruction:
The costs are borne by the American people. More than half of all Americans – nearly 160 million – live in districts or circuits that have a judicial vacancy. … And they can be filled today – this morning – if Senate Republicans would just agree to vote on the nominations that have been reported favorably by the Judiciary Committee. The irony, Mr. President, is that if those nominees could be brought up for a vote, it would probably be a 100 to nothing vote on all or most of them.
Sen. Richard Blumenthal, speaking after Sen. Leahy, rightly called the American judicial system one of the great marvels of the world. The Senate needs to be allowed to fulfill its role in keeping that marvel vibrant and functional.
We should never minimize the importance of careful vetting and scrutiny when it comes to these nominees. But once that process is complete in the Judiciary Committee, blocking these nominees can only be bad for the American people as well as for the 160 million Americans who live in districts and circuits with vacancies whose nominees are sitting on the Senate calendar. They should not have their ability to access justice denied or delayed.
By the time the Senate went home for its month-long holiday in before Christmas, Republicans had made it clear they would continue to obstruct the nominations process so as to cripple both the Consumer Financial Protection Bureau and the National Labor Relations Board. Rather than meekly accept this threat to American consumers and workers, President Obama made several recess appointments, most notably of Richard Cordray, to allow those bodies to function.
As partisan political retaliation, Utah Sen. Mike Lee has claimed the mantle of the Constitution and threatened to escalate his party's sabotage of the judicial nominations process, a threat the president himself condemned over the weekend. In a Huffington Post piece today, the Constitutional Accountability Center's Doug Kendall takes Sen. Lee to task.
[I]t is Senator Lee who is most clearly violating the letter and spirit of the Constitution and playing partisan games. Senator Lee made it absolutely clear that he would not comply with his constitutionally-mandated responsibility to give his "advice and consent" on the Cordray nomination. In an official Senate release in December, he stated that he had no objection to Richard Cordray himself, but that he felt it was his "duty to oppose his confirmation as part of [his] opposition to the creation of CFPB itself."
Actually, according to the Constitution, it's Senator Lee's duty to vote "no" on legislation he opposes, such as the law that set up the CFPB, and to provide "advice and consent" on the president's nominees, judicial or otherwise. Senator Lee's statement is an abdication of his constitutional duty, and it is that hard-line position taken by the President's opponents, coupled with the trick of "pro-forma" Senate sessions designed specifically to prevent the President from exercising his constitutional authority to make recess appointments, that led to President Obama's action on the Cordray appointment.
Kendall's piece is worth reading in its entirety, as it points out many of the hypocritical and misleading ways that Mike Lee waves the Constitution as a weapon to achieve his partisan and ideological ends.
In his weekly address this morning, President Obama followed up on his State of the Union theme of restoring the middle class in a time of unprecedented income inequality. A fair judicial system is a vital component of that effort, and the president condemned Senate Republicans who would sabotage our nation's courts. He specifically criticized Sen. Mike Lee of Utah:
Just two days ago, a senator from Utah promised to obstruct every single American I appoint to a judgeship or public service position – unless I fire the consumer watchdog I put in place to protect the American people from financial schemes or malpractice.
For the most part, it's not that this senator thinks these nominees are unqualified. In fact, all of the judicial nominees being blocked have bipartisan support. And almost 90 percent have unanimous support from the Judiciary Committee.
Sen. Lee's anger at President Obama for protecting the 99% from the untrammeled power of the 1% is no surprise. But it's also nothing new for Senate Republicans, as noted in this U.S. News and World Report article by People For's Marge Baker. Sen. Lee is only coming up with a new excuse to continue doing what Senate Republicans have been doing since Obama became president: obstruct the confirmation of judges who will run courtrooms where the 99% and the 1% stand equal before the law.
During last night's GOP presidential debate, Newt Gingrich perhaps unintentionally but perfectly encapsulated his party's distorted vision of the role of the judiciary in our constitutional structure. It came when Fox News moderator Megyn Kelly asked the candidates whether Congress should eliminate courts that issue decisions it does not approve or. As reported in the Wall Street Journal, a key part of the exchange went as follows:
GINGRICH: Sure. I'd ask, first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges? Eighteen out of 35 were abolished.
KELLY: Something that was highly criticized.
GINGRICH: Not by anybody in power in 1802. [emphasis added]
Putting aside the question of historical accuracy, note that Gingrich did not say "not by anyone in 1802." He was careful to limit the people whose criticism he deemed relevant to those who were in power in 1802.
One reason we have courts is to prevent those in power from using their official authority to harm those out of power – the tyranny of the majority. If the majority uses their control of government to pass laws harmful to minorities, you don't expect them to criticize their own actions. The criticism would come from those out of power who are their victims – the same people who courts are intended to protect.
That no other candidate found Gingrich's limited framing objectionable says volumes about their dangerously distorted vision of the role of courts in our society.
Since President Obama took office, Senate Republicans have used every weapon in their arsenal to slow down or prevent altogether confirmation of his judicial nominees. With partisan obstruction as their lodestar, they have abandoned the principles they professed to have when they were pushing for rapid confirmation of President Bush’s nominees.
But one Republican stands out as an exception: Senator Lisa Murkowski.
When it came time to break the outrageous filibuster of Goodwin Liu, Senator Murkowski was the lone Republican not to salute and obey when her party leadership pushed her to vote against cloture. Last week, she again stood alone among her party and voted to end the partisan filibuster of Caitlin Halligan.
We thank Senator Murkowski for standing on principle.
Today, Sen. Murkowski’s efforts to end the obstruction of a highly qualified Alaskan nominee to the Ninth Circuit are bearing fruit. Morgan Christen’s nomination has had the strong, bipartisan backing of both Sen. Murkowski and Democratic Sen. Mark Begich. The workload in that part of the Ninth Circuit has become so bad as to be officially declared a judicial emergency. Late summer, Christen’s nomination was approved unanimously by the Senate Judiciary Committee.
Christen should have received a floor vote expeditiously, and that is what Sen. Murkowski requested. Unfortunately, Republican leadership put partisanship against President Obama over all other factors and prevented a floor vote for over three months, until today. This afternoon, to no one’s surprise, she was confirmed with overwhelming bipartisan support (the vote was 95-3).
We often disagree with Sen. Murkowski on issues and expect to do so in the future. But when it comes to President Obama’s judicial nominees, we agree. Sen. Murkowski’s lonely stands for principle over party deserve praise.
The latest condemnation of the Senate GOP's dangerous obstruction against executive and judicial nominees comes from Norman Ornstein, a resident scholar at the conservative American Enterprise Institute. In a column published in Roll Call, Ornstein blasted Senate Republicans for the damage they are doing to our country.
Last week, Republicans blocked a vote on the nomination of Caitlin Halligan to serve on the D.C. Circuit Court of Appeals, setting a new standard for nominees to that court that will be virtually impossible for any president of either party to meet. Just two days later, they blocked a confirmation vote for Richard Cordray to head the Consumer Financial Protection Bureau, admitting that they did so not because of any problems with him but because they do not like the law creating that Bureau. Next, two days ago, Senate Democrats tried to overcome Republicans' obstruction of ambassadorial nominees, with mixed results. Ornstein writes:
The good news on Monday was that the Senate, in a show of broad bipartisan support, confirmed Norm Eisen to be the U.S. ambassador to the Czech Republic.
Eisen had been in the post for the past year on a recess appointment, and by all accounts, Czech and American, had been doing an exemplary job protecting and advancing American interests and values in a country that is a critical ally to the United States and an important commercial and trading partner. Why the recess appointment? Because Sen. Chuck Grassley (R-Iowa) decided well over a year ago that Eisen, while serving in the White House, had not been truthful to the Senator's staff over his role in the dismissal of the inspector general of AmeriCorps. Never mind that a voluminous record showed that Eisen had not dissembled, that the entire board of AmeriCorps, left to right, Democrats and Republicans, supported the dismissal, and the actions were upheld in two federal courts. Grassley would not budge.
Senate Democrats filed a successful cloture petition and Eisen was confirmed by voice vote. But the obstruction continued with a politically motivated filibuster of Mari Carmen Aponte to be ambassador to El Salvador. Aponte is now serving under a recess appointment, which expires at the end of the month.
The ostensible reason to oppose her? Decades ago Aponte had a boyfriend who might have had ties to Fidel Castro's government. Never mind that Senators had access to her FBI file — and that she has had a succession of top-secret clearances after exhaustive security checks. Aponte did not fare well — she fell 11 votes shy of the 60 needed once again to overcome cloture.
In a different world — i.e., the world the United States knew from 1789 until a few years ago — her 49-37 margin would have meant a comfortable confirmation. No more. Filibusters used to be rare events for bills, rarer for executive confirmations, rarer still for judicial nominations. Now they are more than routine; they are becoming the norm. Holds were not as rare, but the use of holds to block multiple nominees for not weeks or months but years or until death, were not typical; now they are the standard.
Citing other ongoing examples of Republican senators sabotaging ambassadorial nominations to countries key to U.S. security, Ornstein sums up the situation:
This goes beyond partisan polarization to damage to the fabric of governance and worse — to damage to the vital interests of the United States. ...
[S]hame on a Senate which went from blocking a well-qualified nominee for an appeals court judgeship via filibuster to blocking a superbly qualified nominee for the consumer bureau, to yet another in a series of ambassadors stymied via holds and filibusters. This is no way to govern.
Apparently recognizing the severe and possibly permanent damage they did to the judicial nominations process – and the entire U.S. court system – by filibustering Caitlin Halligan, Senate Republicans are running to the press to do damage control. Two days after they blocked consideration of a highly qualified, mainstream appeals court nominee for purely political reasons, they are claiming that they did nothing of the sort. Still covered in soot from the bomb they set off, they are painting themselves as peace-loving senators treating their Democratic colleagues respectfully.
In what might be mistaken for an April Fool's Day article, Roll Call has a piece trumpeting the GOP's claim that they are following the "golden rule" on judicial nominations, treating nominees supported by Democrats with as much respect as they would want theirs to be treated.
Graham and other Senate Republicans said they expect more of Obama's judicial nominees to be approved by the Senate next year, as long as the nominees' views are within the mainstream and they are properly vetted.
Then why have the Senate Republicans continued to slow-walk every nomination that comes before them? Even those with no opposition at all are forced to wait for months before the GOP allows them a floor vote. The contrast with how quickly President Bush's committee-approved nominees were given a floor vote is shocking. An average 22-day wait for President Bush's district court nominees has ballooned to 90 for President Obama. For circuit courts, Senate Republicans have forced the average wait from 30 days (for Bush) to 137 (for Obama).
The Senate has, for the most part, continued to adhere to the [2005 Gang of 14] agreement. Only two judges have been filibustered since 2005: Goodwin Liu and Halligan ...
Adhering "for the most part" is a cynical attempt to put a positive spin on "not adhering." The filibusters of Liu and Halligan were in clear violation of the agreement. And it's not "the Senate" that has violated the agreement, it's Senate Republicans.
The article conveniently overlooks the aggressive Republican effort to filibuster district court nominee Jack McConnell earlier this year, an effort that garnered the support of the majority of the Republican caucus. It also overlooks the fact that Democrats have had to file cloture on seven of Obama's judicial nominees in order to break through GOP obstruction. That some of those were ultimately confirmed overwhelmingly, sometimes even without any opposition, shows the cynical nature of the Republicans' misconduct.
But there are even more Republican filibusters than that. As a 2011 Congressional Research Service report states, "Cloture may be sought when no filibuster is taking place, and filibusters may occur without cloture being sought." Democratic leadership has sought to bring dozens of qualified, unopposed nominees to the floor in a timely manner, only to have them blocked for months by Republican leadership's refusal to agree. Just because Majority Leader Reid has not filed a cloture petition on them does not mean that they are not being filibustered.
Currently, there are 21 judicial nominations pending on the floor, 19 of them with overwhelming bipartisan support. There is no reason not to vote on them. If Republicans want people to do anything other than laugh at articles like this, they should end their filibusters and allow votes on them all.
Sen. Mike Lee (R-Utah) also said the Halligan vote was no watershed. Lee said the GOP treads lightly when it comes to filibustering judicial nominations, in part, for fear of antagonizing Democrats in the event that Republicans win the majority.
"We don't want to abuse [the filibuster of judicial nominees] because abusing it is wrong," Lee said. "But also there are consequences attached to abusing it and that is [another reason] why we are not abusing it."
"Abuse" is exactly the right word to describe the ongoing Republican obstruction of judicial nominees. Saying that black is white does not make it so.
Senate Majority Leader Harry Reid has scheduled a cloture vote for Tuesday at noon on Caitlin Halligan's nomination to the DC Circuit Court of Appeals. Hopefully, that means the Senate will be able to finally cast an up-or-down vote on an exceptional nominee who was approved by the Judiciary Committee almost nine months ago.
Judiciary Committee Chairman Patrick Leahy released a statement this morning on what it means that Senate Republicans would even consider filibustering someone like Caitlin Halligan:
Republicans' shifting standards with respect to judicial nominations have required cloture motions to be filed on some nominations that ultimately won unanimous support from the Senate. Those shifting standards even required cloture to be filed on a district court nomination earlier this year. It would set yet another new standard if a nominee this well-qualified is prevented from even having an up-or-down vote, and one that could not be met by judicial nominees of Presidents of either party.
Indeed, Halligan's exceptional qualifications and broad-based, bipartisan support cannot be denied:
Clearly, Caitlin Halligan is supremely qualified, mainstream, and uncontroversial. The need for a cloture vote shows how far Senate Republicans have moved the goalposts since claiming during the Bush Administration that the Constitution actually prohibits the filibustering of judicial nominees. It is hard to imagine what "extraordinary circumstances" – the standard set by the "Gang of Fourteen" in 2005 – would possibly warrant a filibuster in this case.
Chairman Leahy is right to mention that a new standard would be created if a DC Circuit Court nominee with such sterling qualifications and bipartisan support cannot even get an up-or-down vote on the Senate floor. What nominee could possibly meet this new standard? Should Halligan be filibustered, then it seems unlikely that any vacancy on that court could ever get filled. Considering that three of the eleven seats on the DC Circuit are vacant (this one for more than six years), that would deal a crippling blow to what many consider to be the nation's second most important court.
When the cloture vote on Halligan is held this Tuesday, let's hope cooler heads prevail. And let's hope that by Wednesday, we'll be calling her Judge Caitlin Halligan.
Today, the California Supreme Court ruled that the proponents of Proposition 8 have standing under California law to defend it when government officials decline to. The court is addressing this issue at the request of the U.S. Court of Appeals for the Ninth Circuit, which needed an answer in order to determine if the Prop 8 proponents have standing to pursue their appeal of the federal district court decision striking Prop 8 down.
Since the proponents are now known to have standing under California law, the Ninth Circuit will likely rule that they have a stake in the outcome of the federal case and, therefore, standing for purposes of federal constitutional law.
The court clearly explained that its logic had nothing to do with Proposition 8 in particular, but with ballot initiatives in general. Its reasoning was straightforward:
Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state‘s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.
It is worth noting that other states do not always give initiative proponents the right under their own laws that California recognized today. This is a state court resolving a question of California law.
This morning began with 25 highly qualified judicial nominees who have been cleared by committee - 23 of them with strong bipartisan support and 21 unanimously - eligible for a quick floor vote. Unfortunately, Senate Republicans allowed only two of them to have a vote.
On the Senate floor today, Judiciary Committee Chairman Patrick Leahy blasted the GOP for their ongoing obstruction. After noting the fact that ten percent of the nation's courts are vacant, he turned to the consequences of preventing our nation's courtrooms from having enough judges to operate effectively.
[A Wall Street Journal article last week] highlights that over 2,000 citizens of Merced California who filed suit in 2007 over toxic chemical contamination stemming from a 2006 flood are still awaiting resolution, and only one civil trial has been held in the matter. In the article, Senior Judge W. Royal Furgeson of the Northern District of Texas is quoted warning that if decisions on contracts, mergers and intellectual-property rights "can't be reached through quick and prompt justice, things unravel for business." ...
A report published last month by the Administrative Office of the U.S. Courts demonstrates the extent of these delays in Federal court. Across the country, there are over 15,000 civil cases that have been pending for more than three years without resolution. The Administrative Office's data show that many of the circuits with the highest number of vacant district judgeships also have the highest backlog of pending cases. The Ninth Circuit has over 1,700 civil cases that have been pending for more than three years. There are currently 14 district judgeships vacant in that circuit, including five vacancies that the Administrative Office has classified as judicial emergency vacancies. The Fifth Circuit has over 1,300 civil cases that have been pending for more than three years. There are eight district judgeships vacant in that circuit, six of which are emergency vacancies.
Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court. While three years may be necessary for some of the most complex business disputes, it is unacceptable for hardworking Americans who are seeking their day in court. When an injured plaintiff sues to help cover the cost of his or her medical expenses, that plaintiff should not have to wait for three years before a judge rules on his or her case. When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute.
Those who routinely prevent votes on consensus nominees apparently have other priorities than the rule of law and the ability of Americans to have their day in court.
There are now 25 highly qualified judicial nominees whose nominations are pending on the Senate floor, 21 of whom cleared the Senate Judiciary Committee without opposition. As Republicans continue to prevent timely confirmation votes, the judicial vacancy crisis goes on. More than 10% of all lower federal courts are now or will soon be vacant. In fact, more than 30% of the current vacancies are judicial emergencies, which means there simply aren't enough judges to get the work of justice done.
In the Wall Street Journal Law Blog, Joe Palazzolo writes about the consequences:
Despite the surge in case loads, the number of authorized federal judgeships has risen just 4% since 1990. ...
Meanwhile, the number of pending federal criminal cases has jumped 70% in the past decade — to over 76,000, according to the Administrative Office of U.S. Courts.
The upshot is that fewer civil litigants are having their day in court. Instead of waiting, many are settling their disputes.
That can be appropriate in many cases, but there is “no shortage of plaintiffs who wind up taking inadequate settlements” or businesses that make unnecessary payments to end the expense and uncertainty of litigation, Ian Millhiser, a policy analyst at the Center for American Progress, a liberal think tank, told the Journal.
W. Royal Furgeson, a senior federal judge in Dallas, told the Journal that if decisions on contracts, mergers and intellectual-property rights “can’t be reached through quick and prompt justice, things unravel for business.”
A related Wall Street Journal article (subscription required) highlights some specific cases that have been delayed or derailed over the past few years due to the lack of judges available to handle the growing caseload. They include Elizabeth and Nicholas Powers, who sued their employer for sex discrimination and retaliation in 2008. As they were awaiting jury selection earlier this year, the judge halted the trial so he could preside over a growing number of criminal cases. Rather than continue to wait for a trial, the Powers settled the case.
The judge in the case, Mike McCuskey, who is also the chief federal jurist for the central district of Illinois, said in an interview he has no choice but to push back civil cases because of his criminal caseload. In 1997, federal court statistics show, Judge McCuskey's district had 55 civil cases that were pending more than three years. Last year, it had 1,200.
"Civil litigation has ground to a halt," Judge McCuskey said, adding that "you've got a right to sue but you do not get a right to a speedy jury trial."
President Obama has nominated highly qualified jurists to sit on our nation’s federal courts and ensure that every American gets their day in court … if only Senate Republicans would allow that to happen.
November appears to be another month of Republican obstruction of qualified mainstream judicial nominees. So far this month, despite the substantial backlog of pending nominations, the Senate has voted to confirm only three judges. In the same period of time, the Senate Judiciary Committee has forwarded five qualified nominees to the floor, and more are on the way.
The backlog on the floor is growing due to the needlessly slow confirmation rate.
There are currently 24 qualified nominees waiting for a floor vote, 20 of whom received no opposition at all in committee. Many of the consensus nominees have been waiting for a vote since the summer. Eight of the pending nominees are judicial emergencies.
Without judges, the judicial branch cannot function, and the American people's access to justice is delayed or even denied. There are 102 total vacancies, 31 of which are judicial emergencies.
Yet Senate Republicans refuse to consent to timely floor votes on consensus nominees, even when they are strongly supported by their home-state Republican senators. Judiciary Committee Chairman Patrick Leahy spoke out against the obstruction on the Senate floor yesterday:
During President Bush's first 4 years, the Senate confirmed a total of 205 Federal circuit and district court judges. As of today, we would need another 90 confirmations over the next 12 months to match that total. That means a faster confirmation rate for the next 12 months than in any 12 months of the Obama administration to date. That would require Senate Republicans to abandon their delaying tactics.
Yesterday, voters in various parts of the country demonstrated that they want their elected officials to work for, not against, the American people. Ending the sabotage of the judicial branch of the United States government would be one way to show that Republicans are listening.
In the Tea Party, it’s all the rage these days to declare everything unconstitutional – Social Security, Medicare, unemployment insurance, disaster relief, federal civil rights laws, health care reform, basically any law that enables the federal government to take on national-scale problems.
One of the main strategies that the Tea Party has been using to push this extreme and regressive view of the Constitution is pushing aside the Commerce Clause, the clause in the Constitution that gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”
The Commerce Clause, long recognized by courts as the rationale for important progressive economic programs, has come under fire from opponents of health care reform, who are arguing in the courts – with mixed success -- that the clause does not allow the Affordable Care Act’s individual health insurance mandate.
In a new report, People For the American Way Foundation Senior Fellow Jamie Raskin argues that “a powerful case can be made “that the Commerce Clause is “the most important constitutional instrument for social progress in our history.”
Without it, Congress could not have passed the National Labor Relations Act, the Fair Labor Standards Act, the Clayton and Sherman Anti-Trust Acts, the Civil Rights Act of 1964’s prohibition of race discrimination in hotels, restaurants and other places of public accommodation, the Occupational Safety and Health Act, the Equal Pay Act, the Clean Air Act, the Clean Water Act and dozens of other federal statutes protecting the environment and establishing the rights of citizens in the workplace and the marketplace.
Why, then, does the Commerce Clause seem pale and dull next to the Free Speech and Equal Protection Clauses?
Perhaps it is because these provisions clearly declare radiant principles of liberty and equality that translate into easily understood and intuitively attractive protections against arbitrary government power.
Because the Commerce Clause has been a powerful instrument of social reform over the last century, its meaning has periodically provoked deep jurisprudential controversy. This is ironic since the Court routinely and unanimously upheld congressional assertion of a comprehensive federal commerce power before broad democratic purposes entered the picture. The commerce power became the target of virulent attack by corporate conservatives when progressives and labor gained political influence and used this power as the constitutional basis upon which to regulate and improve the character, terms and conditions of the American workplace and marketplace in favor of large numbers of the American people.
Raskin follows the Commerce Clause from its origins at the Constitutional Convention, through the Lochner era, when an activist court “put the Commerce Clause in a straightjacket” to strike down federal worker protection laws and other attempts to regulate interstate commerce, to the late 1930s, when the court returned to a more expansive view of the clause, allowing progressive economic programs and civil rights reforms to flourish, to the Rehnquist Court, which again began to narrow down the scope of Congress’s constitutional regulatory power, to challenges to the Affordable Care Act, which threaten to take us back to the Lochner era.
Timothy K. Lewis, a George H.W. Bush nominee who served on the Third Circuit Court of Appeals from 1992 through 1999, offers some perspective on how judicial confirmations were handled before they became mired in hyper-partisan gridlock:
Nineteen years ago, in the fall of 1992, I was nominated by President George H. W. Bush for a seat on the United States Court of Appeals for the Third Circuit. My confirmation hearing lasted one hour. In fact, I had no time to prepare for it. As a federal district judge, I was in the courtroom, charging a jury, when my secretary burst in with the news that my Senate hearing was to be the very next day. That is how much notice I had. When the vote was called only a few days later, I was unanimously confirmed.
Don’t get me wrong. This is not to celebrate me. It is to reflect on a better time for our politics and ask how things went so wrong. Among the 192 Article III judges confirmed during the elder Bush’s presidency, only David Souter and Clarence Thomas faced confirmation battles (with Thomas undergoing a very difficult confirmation battle). But, of course, they were under consideration for the Supreme Court.
Compare that now with the Obama administration. The president has had only 96 Article III nominations confirmed and 55 others remain in limbo, awaiting Senate action. They are stuck in a process that should by all constitutional standards remain rigorous, but shouldn’t it also be productive? In the same period of time, George W. Bush had 322 confirmed nominees and Bill Clinton had 372 confirmed.
The Obama administration was slow out of the gate on this one – nominations trickled forth in the early days of the administration when the President’s team should have been well-prepared with the names of nominees. But a considerable amount of the fault for this also has to be laid at the feet of Republicans who have made it a badge of honor to frustrate this President, himself a man of the law, from shaping the federal courts he inherited from George W. Bush. If you doubt this conclusion, reflect for a moment on the Senate minority leader’s comment shortly before the 2010 mid-term election when he said that the top – top — political priority over the next two years should be to deny President Obama a second term in office. Really, Senator? So where on the priority list do we put conducting the Senate’s constitutional business?
The gridlock in judicial nominations has been one of the less-noticed bits of collateral damage from the congressional GOP’s scorched-earth policy. But it has caused very real harm to Americans seeking justice in courts around the country -- there are currently 37 judicial emergencies in the federal courts in areas where the sitting judges are too overworked to provide prompt access to justice. Last week, Senate Republicans made an exception to their gridlock rule to fill the most publicized of those emergencies: the seat of Arizona Judge John Roll, who was murdered in the Phoenix shooting that critically injured Rep. Gabrielle Giffords. Roll had stopped by the Giffords event to tell the congresswoman about the urgent need to fill vacancies on the court.
Senate Republicans’ commitment to delay was made particularly clear when they refused to allow a floor vote on 20 pending nominees, most of whom had advanced with no opposition. The Senate GOP’s foot-dragging on judicial nominees is clearly meant to hobble the president’s attempts at basic governance and preserve the dominance of conservative George W. Bush-appointed judges. But it also amounts to the shirking of a basic duty of the Senate: to fill the judiciary with capable, non-politically-motivated judges.