judicial nominations

In an editorial today, the Washington Post urged the Senate to confirm Caitlin Halligan to serve on the D.C. Circuit Court of Appeals. Halligan was originally nominated by President Obama in September 2010 and was approved by the Senate judiciary committee seven months ago.

Ms. Halligan has had a distinguished career and deserves to be confirmed. A graduate of the Georgetown University Law Center, she clerked for D.C. Circuit Judge Patricia M. Wald and later for Supreme Court Justice Stephen Breyer. She has served as head of the appellate practice at a top New York law firm, as solicitor general in that state and now as general counsel for the New York County District Attorney’s Office in Manhattan. The American Bar Association gave Ms. Halligan a unanimous well-qualified rating. The Senate Judiciary Committee approved her nomination seven months ago; she has been waiting for a floor vote ever since.

While it is true that caseloads have been inching downward at the D.C. Circuit, the decline does not take into account the complexity and scope of the cases that land at the court. They include direct appeals involving federal regulatory decisions and national security matters, including cases stemming from the detentions at the U.S. naval base in Guantanamo Bay, Cuba.

Halligan has come under fire from the Right for work she has done as the Solicitor General of New York, where she was representing the interests of a client, rather than her own. Judith Schaeffer at the Constitutional Accountability Center writes:

Nonetheless, in a completely partisan action, every Republican on the Judiciary Committee voted against Ms. Halligan’s confirmation on March 10. Ranking Member Charles Grassley seized on aspects of Halligan’s record that he believes suggest she holds progressive views on certain legal topics. Apart from the fact that such views would hardly be disqualifying, these arguments against Ms. Halligan, as Committee Chairman Patrick Leahy has pointed out, are largely based on her work as a lawyer for a client — primarily as the Solicitor General of New York. It is always very dangerous to attribute to a lawyer positions taken on behalf of a client; all lawyers are required to represent their clients’ interests zealously, and they violate their ethical obligations if they fail to do so.

Moreover, Ms. Halligan’s conservative opponents have been engaged in cherry-picking through her record. As with most if not all attorneys who have had the great honor of serving as the lawyer for a State or other governmental entity dealing with a myriad of legal and political concerns and interests, Ms. Halligan’s record is replete with arguments made on behalf of her clients that could be characterized as “conservative,” along with others that could be characterized as “liberal.”

Linda Greenhouse of the New York Times examined the other right-wing charge leveled against Halligan:

As far as I know, Ms. Halligan has not been an activist for any cause. So what could Republican senators possibly hold against her? Nothing, it turns out, except excellence and career potential. Conservative bloggers floundered around trying to come up with something. A National Review blogger was reduced to accusing her of “left-wing extremism” for having been one of three dozen members of a committee of the Association of the Bar of the City of New York that issued a report in early 2004 critical of the Bush administration’s Guantanamo Bay detention policies.

As it happens, this report has been sitting on my shelf for the past seven years. Not having looked at it in quite a while, I turned to the conclusion on page 153 to see how exactly how extreme it was. Anyone who finds the concluding paragraphs to represent left-wing extremism has been living in a different universe:

"The Constitution is not a 'suicide pact,' as a Supreme Court justice once famously declared. But neither is it a mere compact of convenience, to be enforced only in times of civic tranquility. It should take far more than the monstrous brutality of a handful of terrorists to drive us to abandon our core constitutional values. We can effectively combat terrorism in the United States without jettisoning the core due process principles that form the essence of the rule of law underlying our system of government.
Insistence on the rule of law will not undermine our national security. Abandoning the rule of law will threaten our national identity."

Senate Republicans have been stalling Halligan’s nomination for seven months. It’s time to finally put it to an up or down vote.

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.

This letter to the editor from PFAW's Marge Baker was published in today's New York Times:

Re “G.O.P. Field Stoking Anger at U.S. Courts” (front page, Oct. 24):

Extreme anti-judiciary measures like those proposed by Newt Gingrich, Michele Bachmann and Ron Paul, as well as Mitt Romney’s choice of the ultra-conservative failed Supreme Court nominee Robert H. Bork to head his legal team, are chilling reminders of the stakes of the 2012 presidential election.

But these are not far-off threats. The G.O.P. has already found a simple and immediate way to wage war on the federal judiciary: by obstructing the confirmation of new judges.

There are about 100 vacancies in federal courts throughout the country, a third of which are in districts so hard pressed that they have been designated “judicial emergencies.”

In spite of this, Senate Republicans have been confirming nominees at a record sluggish pace. The Senate is currently sitting on 23 nominees, virtually all of whom have strong bipartisan support. It simply defies reason that nominees who have received absolutely no opposition from either party are sometimes forced to wait months for a simple up-or-down confirmation vote.

A functioning independent judiciary is at the foundation of our democracy. But the religious right has often been wary of the judiciary’s power to act as a bulwark against efforts to crumble the wall of separation between church and state and to deny rights to women, gay people, religious minorities, workers and consumers. Unable to pass extreme measures like the ones being proposed by presidential candidates, the right has settled instead for quietly kneecapping the courts.

MARGE BAKER
Exec. V.P. for Policy and Program
People for the American Way
Washington, Oct. 24, 2011

At a speech yesterday at Southern Methodist University, Justice Ruth Bader Ginsburg touched upon the depressing state of our nation's judicial nominations process. As reported by the Associated Press:

U.S. Supreme Court Justice Ruth Bader Ginsburg said Monday that the confirmation process has become much more partisan and that she probably never would have made it to the high court under the current climate.

"I wish we could wave a magic wand and go back to the days when the process was bipartisan," Ginsburg told the crowd of about 2,000 as she spoke as part of a lecture series for Southern Methodist University's Dedman School of Law.

While most of us cannot wave such a magic wand, Senate Minority Leader Mitch McConnell can. With one word he could stop many of the GOP obstruction tactics against President Obama's judicial nominees. It was just such obstruction that prevented the Senate from voting to confirm twenty pending nominees before it left town several weeks ago, 17 of whom got through committee with no recorded opposition.

As ThinkProgress reported, Justice Ginsburg also noted the hostility felt by some senators toward the ACLU: "Today, my ACLU connection would probably disqualify me."

Unfortunately, she may be right. Late last year, Senator Jeff Sessions – then the Ranking Republican on the Senate Judiciary Committee – railed against judicial nominees who had worked with or been a member of the ACLU, specifically targeting William Martinez, Edward Chen, Goodwin Liu, Jack McConnell, Amy Totenberg, Robert Wilkins, and Michael Simon. He concluded his tirade with the following warning to President Obama:

I do believe the administration needs to understand that this is going to be a more contentious matter if we keep seeing the ACLU chromosome as part of this process.

Republican hostility to the ACLU – and to the constitutional rights it regularly protects – is extremely disturbing. At the same time, the blocking of even unopposed nominees suggests that the GOP's main problems with President Obama's nominees is that they are President Obama's nominees.

As a bit of follow up to Michael's post about the Goodwin Liu vote, it is worth noting that Sen. Lisa Murkowski was the ONLY Republican senator to break with her party and do the right thing, voting to move the nomination forward to a full floor vote.

In 2005, she said, “Let me make it clear that I support an up-or-down vote on all nominations brought to the Senate floor, regardless of the president nominating them or which party controls the Senate.”

Murkowski said in a statement after today's vote, "I stated during the Bush Administration that judicial nominations deserved an up or down vote, except in ‘extraordinary circumstances’ and my position has not changed simply because there is a different president making the nominations."

Sen. Murkowski deserves to be thanked for her consistency, and for sticking to a commitment that many in her party also made but abandoned.

Last night, the Senate struck an agreement to confirm three of President Obama’s non-controversial judicial nominees. That’s great—but, as of this morning, it leaves 99 seats on the federal judiciary left to fill. And, as the long road to last night’s three easy confirmations shows, if the Senate’s behavior with judicial nominations doesn’t change, that number is not going to dwindle fast.

The stories behind the three nominees confirmed last night clearly illustrate the Senate dysfunction that has led to one in nine seats on the federal judiciary being vacant. Marco Hernandez, an Oregon judge, was first nominated to the federal district court in 2008…by George W. Bush. When President Obama renominated him July, 2010, he did not receive a vote in the Senate. When his nomination finally went to a vote yesterday, after three years and three nominations, he was confirmed unanimously.

Attorney Paul Kinloch Holmes was nominated for the federal bench in Arkansas in April, 2010. His nomination stalled all last year in the Senate, and President Obama renominated him last month. He was confirmed without a single dissenting vote. Diana Saldana of Texas, also confirmed without dissent last night, had also been nominated twice and seen her nomination languish on the Senate floor for almost a year.

The Washington Post today reports on the crisis in the federal judiciary created by the Senate’s failure to confirm judges at the rate that they’re retiring:

The crisis is most acute along the southwestern border, where immigration and drug cases have overwhelmed court officials. Arizona recently declared a judicial emergency, extending the deadline to put defendants on trial. The three judges in Tucson, the site of last month's shooting rampage, are handling about 1,200 criminal cases apiece.

"It's a dire situation," said Roslyn O. Silver, the state's chief judge.

In central Illinois, three of the four judgeships remain vacant after two of President Obama's nominees did not get a vote on the Senate floor.

Chief Judge Michael McCuskey said he is commuting 90 miles between Urbana and Springfield and relying on two 81-year-old "senior" judges to fill the gap. "I had a heart attack six years ago, and my cardiologist told me recently, 'You need to reduce your stress,' '' he said. "I told him only the U.S. Senate can reduce my stress.''

As we’ve pointed out here before, the judicial crisis is about far more than the health of overworked judges. Overworked courts mean slower access to justice for citizens:

The effect is most visible in civil cases, with delays of up to three years in resolving discrimination claims, corporate disputes and other lawsuits.

"Ultimately, I think people will lose faith in the rule of law,'' said Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit in California. "We as a nation believe that if you have a dispute, you go to court and within a reasonable period of time, you get a decision.''

Ultimately, it’s ordinary citizens who pay for the Senate’s failure to perform one of its simplest and most essential tasks—ensuring the fairness and functioning of the federal judiciary.
 

We write a lot about “judicial emergencies”—situations where slow-downs in the judicial nominations process have led court systems to be woefully understaffed. These cases are not emergencies because judges have to work harder—they’re emergencies because when courts are overworked, access to justice is delayed.

Last week, Politics Daily’s Andrew Cohen explained what is happening in Arizona, where Chief District Court Judge John Roll was murdered when he stopped by an event with Rep. Gabrielle Giffords to talk with her about the overcrowded courts. Roll had been planning to request that Arizona be labeled a “judicial emergency” in order to loosen restrictions on speedy trials:

Roll did not live to see his request granted. But on Tuesday, less than three weeks after he was shot by accused gunman Jared Lee Loughner, Roll's successor finally did declare a "judicial emergency" in the state after consulting with the 9th Circuit's Judicial Council. The move by Chief U.S. District Judge Roslyn O. Silver allows federal judges in the state to wait for as long as 180 days between the time of the indictment or complaint and the time of trial, even if a criminal defendant wants to go to trial more quickly.

The administrative move could delay the Loughner case itself, depending upon whether the 22-year-old defendant's attorneys try to change the trial venue from Arizona to another state or if federal prosecutors decide to seek the death penalty against Loughner. Most federal murder cases do not go to trial quickly anyway, in large part because of the significant pre-trial work it typically takes for lawyers to prepare their cases. The government has not yet charged Loughner with a capital crime. The next hearing in the case is set for March 9.

The extraordinary action by Silver was taken because of the sheer volume of cases. According to the 9th Circuit: "The Arizona federal court has the third highest criminal caseload in the nation, driven by illegal immigration and drug smuggling across the U.S.-Mexico border. Criminal cases have increased 65 percent since 2008, when the federal government greatly expanded its law enforcement efforts along the border. The bulk of the criminal caseload is assigned to the court's Tucson division, where three judges currently handle approximately 1,200 cases each" (emphasis added).

There are currently 101 empty seats in the federal courts, 49 of which have been labeled as judicial emergencies [pdf]. Chief Justice John Roberts recently pleaded with the Senate to stop holding up judicial nominees, saying their stalling had resulted in “acute difficulties for some judicial districts.” Justice Anthony Kennedy told the Los Angeles Times, “It's important for the public to understand that the excellence of the federal judiciary is at risk.”

In an editorial memo last week, PFAW outlined the Senate obstruction that has been largely responsible for the slow pace of filling judicial vacancies in the Obama administration:

On the occasions when it has confirmed nominees to the bench, the Senate has slowed down the process to the point of absurdity. During the first two years of the George W. Bush administration, District Court nominees were confirmed in an average of 25 days. Under President Obama, the wait has averaged 104 days. For Circuit Court judges, the time has increased six-fold, from 26 days to 163 days on average.

Senators need only to look to Arizona to see the real impact that playing politics with judicial nominations has on the ability of citizens to get prompt access to justice.
 

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.

On Wednesday night, the Senate left for recess without confirming a single one of the 23 judicial nominees who had been waiting for a vote, most of them for several months. The GOP blocked the majority of these nominees not because of ideology—19 were approved unanimously by the Judiciary Committee—but just for the sake of obstruction. President Obama responded yesterday with this letter to Senate leaders:

Dear Senator Reid, Senator McConnell, Senator Leahy, and Senator Sessions:

I write to express my concern with the pace of judicial confirmations in the United States Senate. Yesterday, the Senate recessed without confirming a single one of the 23 Federal judicial nominations pending on the Executive Calendar. The Federal judiciary and the American people it serves suffer the most from this unprecedented obstruction. One in eight seats on the Federal bench sits empty, and the Administrative Office of the U.S. Courts has declared that many of those vacancies constitute judicial emergencies. Despite the urgent and pressing need to fill these important posts, a minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees – including nominees that have strong bipartisan support and the most distinguished records. The minority has even been blocking non-controversial nominees – a dramatic shift from past practice that could cause a crisis in the judiciary.

The Judiciary Committee has promptly considered my judicial nominees. Nonetheless, judicial confirmation rates in this Congress have reached an all-time low. At this point in the prior Administration (107th Congress), the Senate had confirmed 61% of the President’s judicial nominations. By contrast, the Senate has confirmed less than half of the judicial nominees it has received in my Administration. Nominees in the 107th Congress waited less than a month on the floor of the Senate before a vote on their confirmation. The men and women whom I have nominated who have been confirmed to the Courts of Appeals waited five times longer and those confirmed to the District Courts waited three times longer for final votes.

Right now, 23 judicial nominees await simple up-or-down votes. All of these nominees have the strongest backing from their home-state Senators – a fact that usually counsels in favor of swift confirmation, rather than delay. Sixteen of those men and women received unanimous support in the Judiciary Committee. Nearly half of the nominees on the floor were selected for seats that have gone without judges for anywhere between 200 and 1,600 days. But despite these compelling circumstances, and the distinguished careers led by these candidates, these nominations have been blocked.

Judge Albert Diaz, the well-respected state court judge I nominated to the U.S. Court of Appeals for the Fourth Circuit, has waited 245 days for an up-or-down vote – more than 8 months. Before becoming a judge, Diaz served for over 10 years in the United States Marine Corps as an attorney and military judge. If confirmed, he would be the first Hispanic to sit on the Fourth Circuit. The seat to which he was nominated has been declared a judicial emergency. Judge Diaz has the strong support of both of North Carolina’s Senators. Senator Burr has publicly advocated for Judge Diaz to get a final vote by the Senate. And just before the August recess, Senator Hagan went to the floor of the Senate to ask for an up-or-down vote for Judge Diaz. Her request was denied.

We are seeing in this case what we have seen in all too many others: resistance to highly qualified candidates who, if put to a vote, would be unanimously confirmed, or confirmed with virtually no opposition. For example, Judge Beverly Martin waited 132 days for a floor vote – despite being strongly backed by both of Georgia’s Republican Senators. When the Senate finally held a vote, she was confirmed to the Eleventh Circuit unanimously. Jane Stranch was recently confirmed by an overwhelming majority of the Senate, after waiting almost 300 days for a final vote. Even District Court nominees have waited 3 or more months for confirmation votes – only to be confirmed unanimously.

Proceeding this way will put our judiciary on a dangerous course, as the Department of Justice projects that fully half of the Federal judiciary will be vacant by 2020 if we continue on the current pace of judicial confirmations. The real harm of this political game-playing falls on the American people, who turn to the courts for justice. By denying these nominees a simple up-or- down vote, the Republican leadership is undermining the ability of our courts to deliver justice to those in need. All Americans depend on having well-qualified men and women on the bench to resolve important legal matters – from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment for perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.

As a former Senator, I have the greatest respect for the Senate’s role in providing advice and consent on judicial nominations. If there is a genuine concern about the qualifications of judicial nominees, that is a debate I welcome. But the consistent refusal to move promptly to have that debate, or to confirm even those nominees with broad, bipartisan support, does a disservice to the greatest traditions of this body and the American people it serves. In the 107th Congress, the Judiciary Committee reported 100 judicial nominees, and all of them were confirmed by the Senate before the end of that Congress. I urge the Senate to similarly consider and confirm my judicial nominees.

Back in June, President Obama made a similar plea in a meeting with Senate GOP leaders, but apparently bipartisan cooperation on something as straight-forward as filling seats in the judiciary wasn’t on their list of priorities.

(I also want to point out that while the GOP is holding up most of the 23 stalled nominees for absolutely no reason, there are a handful of nominees who certain GOP senators actively oppose. We’ve explored some of the reasons for this opposition here and here and here.)