Today, the Senate voted to advance the nomination of Michelle Friedland to the 9th Circuit.
Friedland was one of many superb, highly qualified judges caught up in Republicans' blanket obstruction of judicial nominees, and President Obama was forced to re-nominate her for the court this year. After today’s vote, she still faces 30 hours of potential "post-cloture debate," unless Republicans allow the Senate to move forward on the nomination more expeditiously.
Even though the Senate changed its filibuster rule for judicial and executive branch nominations, lowering the threshold from 60 votes to a simple majority in order to invoke cloture and advance nominees toward confirmation votes, Republicans continue to force cloture votes as a procedural hurdle. The delay created by these votes and the subsequent 30-hour wait before a confirmation can occur amounts to a stubborn form of obstruction in itself.
And this is just one way that Senate Republicans are continuing to hold up the judicial nomination process. Judicial nominees from states with Republican senators also face unreasonable, meritless obstruction due the GOP's abuse of the Senate's "blue slip" policy, by which a senator can unilaterally put a permanent hold on a nominee from his or her state before they even get a hearing.
There are currently 31 judicial nominees on the Senate's calendar, many for long-unfilled vacancies and nearly half for ones that have been declared "judicial emergencies." As vacancies languish, courts can't do their job and in turn, Americans are denied access to justice. If Republican senators ended their obstruction and allowed the 31 pending nominees to go through, that alone would fill a third of the nation's current vacancies.
But based on how Republicans on Capitol Hill are behaving, we shouldn't hold our breath.
Today alone, in addition to wasting the Senate's time and taxpayers' money by forcing the Leadership to hold a cloture vote on Michelle Friedland, instead of just bringing her confirmation straight to an up-or-down vote:
We’re going to keep fighting to get as many more nominees confirmed as we can this year, before time runs out. But the message we send to Republicans in November is tremendously important as well.
Winning or losing at the ballot box could be the difference between a continued vacancy crisis on federal courts dominated by pro-corporate, conservative ideologue judges or the restoration of balance and justice to our courts with the confirmation of highly qualified judges who understand the promises of the Constitution and how the law impacts the lives of real people.
In an op-ed Sunday, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, addressed critics of his use of blue slips, a committee tradition that Republicans continue to abuse. Under this policy, the chairman asks the Senators from a nominee’s home state to submit a blue slip expressing their support or opposition. The consequences have varied over time, depending on who the chairman has been. Leahy’s practice has been to not hold a hearing unless both senators submit their blue slips saying they support letting the committee process the application. As Senator Leahy points out
The Constitution requires presidents to seek both the “advice and consent” of the Senate in appointing judges to lifetime posts on the federal courts. … When senators return this paper, it is proof that the senators elected to represent that state were consulted and the nominee is likely to be confirmed.
Leahy states he “cannot recall a single judicial nominee being confirmed over the objection of his or her home-state senators,” and affirms the importance of home-state support in moving the process forward.
But Leahy also acknowledges that the “judicial confirmation process in the Senate has grown increasingly difficult,” and that Senate practices that bring principles of the Constitution to life do need “ongoing evaluation to make sure they work as intended. And he reiterates that he “would not rule out proceeding with a nomination if the blue slip is abused.”
Indeed, since his election, President Obama has routinely sought the advice of senators through the judicial nominations process. It has been a hallmark of his presidency. But too many Republicans have refused to engage in a cooperative process, instead seeking the authority to pick the nominee themselves, even if it is someone the president would oppose. When that happens, no nomination is made. Other times, the senators withhold the blue slip indefinitely, often refusing to give a reason why, and sometimes even after they themselves recommended the nominee they are now blocking. The result of this abuse has been the worsening of a serious judicial vacancy crisis.
Chairman Leahy has stressed the importance of blue slips in showing that senators have been consulted by the White House. Taking heed of Leahy’s words, Republicans should be wary of continuing the abuse of the blue slip process to block judicial confirmations. Their continued use of this “silent, unaccountable veto” is a detriment to the judicial process. As GOP obstruction continues through withholding of blue slips despite substantial consultation, judicial nominations grow more cumbersome, and the impracticality of this part of the process becomes clearer.
Early this year, President Obama nominated Judge Beth Bloom, Judge Darrin P. Gayles, Judge Carlos Eduardo Mendoza, and Paul G. Byron to the Southern and Middle District Courts of Florida. Of the four vacancies in the Southern District, three have been declared judicial emergencies. The situation in Florida is so dire that even if every vacancy were to be filled tomorrow, it would not be enough to take care of the courts’ growing workloads. In fact, the Judicial Conference has requested a number of new judgeships for the state, including:
• 5 new judgeships for the Middle District, plus a temporary judgeship; and
• 3 new judgeships for the Southern District, plus the conversion of a temporary judgeship to a permanent position.
It is imperative that these nominations be confirmed swiftly; the Senate’s delays in confirming nominees translate to delays for Floridians waiting for their day in court.
Sen. Marco Rubio stated on NPR last month that he did “not anticipate having any objection to moving forward on any of [President Obama’s] nominees” for the district courts in Florida. In fact, the nominees were recommended by Sen. Rubio, along with Sen. Bill Nelson, based upon the recommendations of a bipartisan committee the two senators put together. Yet to date Sen. Rubio –unlike Sen. Nelson—has not signed the “blue slips” the Senate Judiciary Committee customarily requires before nominees are given a committee hearing. This is cause for some concern in light of Sen. Rubio’s refusal last year to sign off on other Florida nominees to seats that he himself had recommended.
Rubio’s slow-walking of his “blue slips” comes in the context of the GOP obstruction that has needlessly delayed the confirmation of most Obama nominees. After committee approval, President Obama’s district court nominees have been forced to wait an average of three times longer for a confirmation vote than President George W. Bush’s at this point in his presidency. Obama’s circuit court nominees are forced to wait nearly two months longer than Bush’s. This slowing down of the process seems completely gratuitous and politically motivated since the overwhelming majority of Obama’s judicial nominees have been confirmed unanimously or near-unanimously.
The current nominees are also important because they represent much-needed diversity in the federal courts. Gayles, for example, would be the first openly gay African-American man on the federal bench. However, with Rubio’s history of unfavorable treatment of previous nominees he has recommended, there is little expectation that he will help move this nomination process forward any faster. Gayles is up for the same seat to which William Thomas, also an openly gay African American man, was nominated in November 2012, a nomination that Rubio sabotaged.
Some were expecting these four Florida nominees (who were nominated in early February) to have their committee hearings this week, but because Rubio has not submitted his blue slips, that will not happen.
We join advocacy groups in Florida in urging Rubio to help get the state’s nominees confirmed as soon as possible.
Early this week, the Senate is scheduled to hold cloture votes on four judicial nominees, including Timothy Brooks, nominee for the Western District of Arkansas and Pamela Reeves, nominee for the Eastern District of Tennessee. Brooks and Reeves have been waiting for confirmation votes on the Senate floor since October 31 and November 14, respectively.
As we noted earlier this month, Republicans are routinely delaying nominations on the Senate floor by requiring Democrats to invoke cloture on every single judicial nominee and then piling on hours of unneeded “post-cloture debate” for each nominee who is called up for a vote. This practice creates a weeks-long backlog of nominees awaiting votes and prevents the Senate from moving on to other business. Nominees like Brooks and Reeves could have been confirmed within minutes after they were sent to the Senate floor last year. Instead, both of these nominations were sent back to the president in early January at the end of the first session of the 113th Congress to be re-nominated. After further needless delays in Committee, the nominees were finally placed on the Senate calendar only to wait an additional two months for consideration.
After the Senate has finally worked through the backlog of nominees to get to the Arkansas and Tennessee vacancies, Republicans are throwing up additional roadblocks, forcing Senator Reid to file cloture petitions, which will further delay their consideration. These nonsensical delays of well qualified nominees undermine the public’s faith in the Senate and create hardship for those seeking justice in the courts.
Last week, in advance of a Senate Judiciary Committee vote on six Arizona district court nominees, senior legislative counsel Paul Gordon asked if Arizona Senators Jeff Flake and John McCain would be able to convince their Republican colleagues to break what has become their practice of routinely delaying nominees’ votes. Since 2009, only five of President Obama’s judicial nominees had been allowed to have their committee votes cast without delay. Gordon urged the Senators to forgo this obstruction, especially given the enormous caseload in Arizona that is impeding the operation of the Arizona district court that has 6 of its 13 seats vacant.
Yesterday, in a departure from their practice, the Committee actually voted on the nominees. 91. 5 KJAZZ reported:
“The liberal advocacy group People for the American Way called this a step toward fixing the judicial vacancy rate in Arizona, but noted that there are 28 people awaiting confirmation ahead of these nominees.”
Executive vice president Marge Baker also commented on the turn of events in an interview with Cronkite News:
“It wasn’t sustainable to keep delaying this process, and it seems that Arizona senators finally heeded reason. Arizona has had a terrible judicial vacancy rate. This is an important step towards fixing it.”
This was a relief for the state of Arizona, as well as a nice change of pace for Senate Republicans. But as a judicial vacancy crisis continues in Arizona and across the country, the work is far from over.
On Tuesday, Senate Majority Leader Harry Reid (D-Nev.) responded to Sen. Chuck Grassley’s (R-Iowa) absurd claim that this Congress has done well in confirming judicial nominees. In fact, Republicans have not consented to even one judicial confirmation vote since November. The few votes that have been held since then have been over GOP filibusters. Unfortunately, Senate rules allow them to demand hours of needless “post cloture debate” after every cloture vote, so it could take weeks and weeks of Senate floor time to get through all the nominees waiting for a simple yes-or-no vote.
Reid was quick to voice that the confirmation process has been unnecessarily delayed by GOP obstruction:
Everyone knows that we are in this situation because of Republicans slow-walking every nomination—every nomination. There is no reason, no reason whatsoever that we are having votes on cloture on these judges.
“It is a waste of the taxpayers’ time to go through the process we’ve been going through.
Reid, aware of the prolonged time they will spend clearing the backlog due to these procedural delays, promised that they will get through filing cloture on all of the nominees.
If that’s what the Republicans want us to do, then that’s what we’ll do. The American people will see this colossal waste of time that we’ve been going through.
Get ready. There’s more Republican obstruction on the way.
The Senate Judiciary Committee has scheduled a vote on 11th Circuit nominee Robin S. Rosenbaum for this Thursday, which is an important step forward in the fight to address our judicial vacancy crisis. Fully a third of the 11th Circuit’s twelve active judgeships are currently vacant, and all four of its empty slots have been declared judicial emergencies by the Administrative Offices of U.S. Courts.
The vacancy crisis in the 11th Circuit is so bad that the court’s chief judge, Edward Carnes, issued an order in December temporarily suspending the standard rule that at least two judges on a three-judge 11th Circuit panel must be members of that court. That means that going forward, two of three judges on these panels could be visiting from someplace else, potentially outvoting the one 11th Circuit judge. It is vital that Judge Rosenbaum be confirmed in a timely manner. And that starts with a timely committee vote.
But it’s unlikely that’s enough reason for GOP Senators to drop their campaign of endless delays for judicial nominations.
That is, unless Sen. Marco Rubio or Sen. Jeff Sessions steps in.
Rosenbaum is from Florida, which gives Rubio a special responsibility to urge Republican senators on the committee not to delay the vote. It is a chance for him to prioritize his constituents over politics. Similarly, Sessions, who represents a state (Alabama) covered by the 11th Circuit, also has a unique responsibility, as a member of the Judiciary Committee, to avoid such needless delay.
Will either Rubio or Sessions step up and help move the process in a more functional direction? We’ll learn on Thursday, but if past events are a predictor of future behavior, I wouldn’t hold my breath.
The Senate is scheduled to vote to end filibusters and then to confirm four federal district court nominees tonight and tomorrow morning, two for the Northern District of California, one for the Eastern District of Arkansas, and one for the District of Connecticut. All four of these nominees were thoroughly vetted and approved by unanimous voice vote by the Judiciary Committee last year. They should have and could have been confirmed months ago. (In contrast, George W. Bush’s confirmed district court noms only waited about a month on average between committee approval and confirmation.) However, because of Republican obstruction, all four nominees have waited months for a simple confirmation vote. And Senate Republicans are indicating that they won’t stop their obstruction anytime soon. In fact, it looks like they are willing to waste weeks of time in “post-cloture debate” on these and subsequent nominees.
Judge Jeffrey Alker Meyer of Connecticut has been waiting for a confirmation since he was first approved by the Senate Judiciary Committee on September 19. Judge James Maxwell Moody, Jr., of Arkansas has been waiting since November 14. The two nominees from Northern California, Judge James Donato and Judge Beth Labson Freeman, have both been waiting since October 31st.
This frustratingly slow process is the result of layers of delaying tactics by GOP senators. Republicans refused to hold votes on these nominees for months, and now that they are being called on their obstructionism through filibuster-ending cloture votes, they’re making the votes take as long as possible by demanding that each take hours of “post-cloture debate.” This is especially ridiculous for nominees whom the Republicans actually support. Not only is this delaying confirmation of judges in these particular states; it’s also delaying nominees in other states waiting in line for their turn, including many for posts that have been deemed “judicial emergencies.” This delaying tactic from Republicans not only slows what should be a simple process, it deprives these states’ constituents the fully functioning justice system they deserve.