Judicial vacancies slow down courts’ work, drive up litigation costs, cause evidence to go stale, make it harder to settle civil cases, and even pressure defendants into pleading guilty, according to a report released this week by the Brennan Center. The report cites example after example of how not having enough judges erodes our nation’s system of justice. Everyone counts on having their day in court, a fundamentally American principle that is threatened by persistent vacancies. The report quotes Chief Judge William Skretny of New York’s Western District:
We don’t neglect the Seventh Amendment, the right to a civil trial. But we tell people, if this is what you want to do, it will take time to get there.
Heavier caseloads and backlog created by vacancies also take a toll on judges, reducing the amount of time they have to spend on each case.
Chief Judge [Leonard] Davis in the Eastern District of Texas described the situation in his district as “simple math.” With more cases “you have less time to give to [an individual] case,” he explained. “It affects the quality of justice that’s being dispensed and the quantity of work you can complete,” he added.
[Judge Davis] also highlighted the impact of the Sherman vacancy on the timing of sentencing. “It’s a hardship for the litigants,” he explained. “Due to the backlog and [the] vacancy [in Sherman], we have a very high population of criminal defendants, about 200, sitting in county jails, having pled guilty and waiting for sentences. They can’t get their cases processed.” He noted that inmates are typically housed in a county jail because there are no federal facilities available, which is more costly for the government and leaves inmates with fewer work and educational opportunities. “That’s not fair to [the inmates] and adds a great deal of unnecessary cost by having to house them for so long in county jail holding facilities,” he said.
As the report makes clear, vacancies have real impacts for all citizens. This is why PFAW supports the speedy confirmation of qualified judicial nominees to federal courts. Filling judicial vacancies with quality judges will reduce backlogs and costs while allowing the judicial system to better serve all Americans. Maintaining the third branch is one of the most important constitutional functions that the Senate performs.
Federal district court nominee Michael Boggs of Georgia had his confirmation hearing before the Senate Judiciary Committee on Tuesday. The hearing was his opportunity to address the many serious concerns we and others have had about his record. When he first ran for office as a state judge, he assured voters that they could know where he stood by looking at his legislative record, including his opposition to marriage equality. But judges aren’t supposed to let their personal political beliefs determine how they rule on cases. In addition, the legislative record he cited is deeply disturbing.
Unfortunately, his testimony in response to senators’ questions only deepened our concerns. So in a letter Wednesday to members of the Senate, People For the American Way expressed strong opposition to this confirmation. PFAW Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon delineated the reasoning behind the organization’s opposition to Boggs’ confirmation.
“[Boggs’] record makes clear that senators should not confirm him to a lifetime position as a United States judge,” the letter states. “…we do not believe Michael Boggs has demonstrated that he would be able to bring to his service as a lifetime judge on the federal courts the requisite impartiality necessary for such a position.”
The five page letter discusses the problems around Boggs’ ability to perform in the role of judge and his actions relating to LGBT equality, reproductive rights, and government promotion of religion. It also discusses the controversy around his support for the inclusion of Confederate imagery in the Georgia state flag, as well as his candor before the Judiciary Committee. You can read the full text of the letter here.
Tuesday afternoon, PFAW hosted a special member telebriefing on the continued GOP obstruction of judicial nominees. The briefing featured PFAW’s Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon. They discussed how Republicans’ obstruction has reached staggering levels, despite changes in Senate filibuster rules.
Marge gave a brief background on the issue of GOP obstruction of judicial nominations, explaining how important federal judgeships are for deciding many issues that affect everyday Americans and defining why Republicans are determined to continue obstruction confirmations of judicial nominees. Their underlying goal is to keep as many seats empty as possible so a President Cruz or Rubio can fill them with right-wing ideologues.
She addressed the current narrative that President Obama has had more confirmations at this time than Bush had, and explained that these numbers need to be put in the context of the fact that Obama has had around 70 more vacancies to fill than his predecessor. That means for Obama’s confirmation results to be seen as equivalent to those of President Bush, he would have had to have many more nominees confirmed at this point in his presidency.
Paul began a discussion of some of the choke methods Republicans are employing to block the confirmation of President Obama's nominees to the bench. Paul delineated how all too often, GOP senators do not cooperate with the White House to suggest candidates for nomination, delaying the process from the very beginning. Once nominees are made and are sent to the Senate Judiciary Committee, we have seen GOP Senators delay the hearing by not submitting their blue slips, an unofficial tradition that gives home state Senators an opportunity to express their support for the nominee.
Marge explained ways in which Republicans are delaying the process once nominees are in committee, where the minority is allowed to request one-week delays. To express the magnitude of the obstruction, Marge explained how of the 270 nominees who have had a vote during President Obama's term, only 11 have had their votes held on time.
Once on the Senate floor, the situation doesn't get better as senators are able to filibuster nominees by refusing to give unanimous consent to the simple act of holding a yes-or-no confirmation vote. To offset these delays, Senate Majority Leader Harry Reid has been forced to file for cloture. Since the rules change in November, there have been cloture votes on all the nominees, adding hours of senate time in post-cloture debates (30 hours per circuit court nominee).
Marge highlighted that if all 30 nominees on the floor were voted on today, which is possible, then the number of current vacancies would drop precipitously, down to the level at this point in George W. Bush’s presidency. It is essential that these be voted on now, and that confirmation votes for nominations coming out of committee be voted on expeditiously.
Fielding questions from PFAW members, Marge and Paul discussed particular cases of obstruction like that of William Thomas's nomination in Florida, where Senator Marco Rubio withheld his blue slip in support of the nominee-–one that he himself had recommended in the first place. Members also made the connection between the effect of big money in politics and the motivations for GOP senators to obstruct confirmations, and attempted to find ways in which everyday Americans can make their voices heard to their senators regarding the issues of obstruction in judicial nominations. Paul used the example of the DC Circuit Court fight, where with the activism from people across the country rallying together helped get all the court's vacancies filled.
Marge and Paul, along with PFAW members, emphasized how as activists, we can intervene in the fight to take back our democracy by letting Senators know that average Americans are paying attention, watching how they respond and vote on judicial nominations, and considering who may be pulling their strings. For instance, a caller in Florida wanting to influence Marco Rubio could call his office and ask him to prevent a delay in a committee vote for nominees to fill four emergency vacancies. And everyone, regardless of whether there are vacancies in their state, can call their senators and call for the quick confirmation of the large number of nominees awaiting a floor vote. She also highlighted what is at stake in this mid-term election since the officials we elect today will help confirm the judges that will decide important cases that affect average Americans. For this reason, it is important to have demographic and experiential diversity in the courts so judges making decisions understand the impact of the law on regular Americans.
Last month, the US Senate failed to invoke cloture on the nomination of Debo Adegbile to head the Civil Rights Division at the Justice Department after a right-wing smear campaign that attacked Adegbile for helping provide legal representation at the appellate level to Mumia Abu-Jamal, a convicted murderer, while working at the NAACP Legal Defense Fund. Every Senate Republican and seven Democrats voted to filibuster Adegbile’s nomination, effectively blocking the nomination and throwing out the window the constitutional ideal that all criminal defendants should have access to quality legal representation.
Last week, over one thousand law professors came together to publicly condemn the vote by writing a letter to the Senate where they explain the ramifications of the vote for law students, lawyers, and the legal profession as a whole. The letter – dated April 25, 2014 – states:
[W]e are deeply concerned that the vote and the rationale publicly articulated by a majority of Senators rejecting Mr. Adegbile sends a message that goes to several core values of the legal profession. These include the right to counsel, the importance of pro bono representation, and the importance of ensuring that constitutional protections are afforded to every criminal defendant regardless of the crimes for which they are accused.
As law teachers we are particularly concerned about the disquieting message conveyed to law students and graduates entering the profession who may fear that their engagement with pro bono representation of unpopular clients may imperil their future eligibility for federal government service.
…We believe that the criticism of Mr. Adegbile, based on his representation of a death row inmate, is unjust and inconsistent with the fundamental tenets of our profession. The Sixth Amendment to the United States Constitution guarantees the assistance of counsel to persons charged with crimes, and all accused defendants are entitled to zealous representation by competent counsel.
The highest calling of any lawyer is to ensure that the Constitution is applied fairly and in accordance with the decisions of the U.S. Supreme Court to every defendant.
…The debate surrounding Mr. Adegbile’s confirmation also threatens to undermine the widely-recognized importance of lawyers providing pro bono representation to meet unmet legal needs. Providing representation to defendants on death row is among the most challenging, resource-intensive and critically important pro bono counsel a lawyer can provide. Lawyers engaged in this work should be commended rather than denounced for their hard-work and commitment to ensuring that the protections of the Constitution are extended even to those accused of heinous crimes.
…Finally, as every lawyer knows – including the 57 in the U.S. Senate – we are not our clients. The constitutional right to effective assistance of counsel would be turned on its head if the contrary view were advanced. Indeed, had past candidates for public office been held to the Senate’s unjust standard, our nation would have been deprived of the likes of President John Adams (who defended British soldiers charged with killing Americans in the Boston Massacre), Justice Thurgood Marshall (who defended countless black men on death row in the Jim Crow South), and Chief Justice John Roberts (who represented convicted serial killer John Errol Ferguson).
Simply put, the rule of law cannot succeed if attorneys are judged guilty by association with their clients. In rejecting a qualified nominee for public service based on conduct which reflects the best of our profession, the Senate has done a grave disservice to the legal profession and those who seek to enter it.
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.