Chris Kang, Senior Counsel to the President, notes on the White House blog that today markes the one-year anniversary of the day Third Circuit nominee Patty Shwartz was first approved by the Senate Judiciary Committee. That means that Shwartz, an experienced and respected attorney, has been waiting a full year simply for an up-or-down vote from the Senate. The ABA panel that evaluates the qualifications of judicial nominees unanimous gave her its highest possible rating. Not surprisingly for someone of her caliber, she has the strong support of Democrats and Republicans alike, including New Jersey Gov. Chris Christie.
Kang writes that Shwartz’s experience is sadly not unusual in a Senate that’s been hamstrung by an obstructionist Republican minority:
Unfortunately, the delay for Judge Shwartz is not unique. Last week, my colleague wrote about Judge Robert Bacharach, who was recommended to the White House by one of his Republican home state Senators, but waited 263 days for a floor vote before being confirmed 93-0. And on Monday – after 347 days of delay -- the Senate will consider the nomination of Richard Taranto to serve on the U.S. Court of Appeals for the Federal Circuit.
Overall, President Obama’s judicial nominees wait an average of 117 days on the Senate floor for a vote -- more than three times longer than President Bush’s judicial nominees, who waited an average of only 34 days. The Senate must promote the administration of justice by returning to the prompt consideration of judicial nominations. It should consider Judge Shwartz’s nomination without further delay, as well as the fifteen district court nominees awaiting votes. Yesterday, the Senate Judiciary Committee unanimously approved five district court nominees. There is no reason they – and the others approved before them – should not be confirmed within 34 days.
The White House announced two new federal appeals court nominees today, Jane Kelly of Iowa to serve on the Eighth Circuit Court of Appeals and Gregory Alan Phillips of Wyoming to serve on the Tenth Circuit Court of Appeals.
Kelly’s nomination is notable for a number of reasons. If confirmed, she will become only the second woman ever to serve on the Eight Circuit Court of Appeals, which oversees seven Midwestern states, and the first from Iowa. She would also help to bring a greater diversity of professional backgrounds to the federal bench, coming to the position after a career as a highly-regarded federal public defender.
Kelly’s nomination underscores the Obama administration’s remarkable success in bringing a diversity of voices to the federal bench. A record 41 percent of President Obama’s confirmed nominees have been women and 36 percent have been people of color. In addition, Obama has nominated more openly gay federal judges than all previous presidents combined. Despite the Senate GOP’s routine stalling of the president’s nominees, he has succeeded in bringing unprecedented gender and racial diversity to the federal bench.
Both Kelly and Phillips have been nominated to vacancies that have not yet opened up (Kelly’s vacancy opens tomorrow and Phillips’ in April). If the Senate confirms them quickly it will avoid adding two more vacancies to an already over-burdened federal court system. Promptly filling the 10th Circuit vacancy is especially critical since the 12-judge Tenth Circuit is on track to have vacancies in one third of its seats. A nominee for one of the three current vacancies on the circuit, Robert Bacharach of Oklahoma, has been waiting over seven months for a Senate vote, despite strong support from his two home-state Republican senators.
The New York Times’ Linda Greenhouse has a great blog post up on the National Rifle Association’s little-known role in influencing Senate votes on federal judicial nominees. Greenhouse focuses on the NRA’s effort to scare Republican Senators away from voting for the Supreme Court nominations of Sonia Sotomayor and Elena Kagan – neither of whom had any actual Second Amendment record – and its successful effort to frustrate the DC Circuit nomination of Caitlin Halligan, who had once represented the state of New York in a gun control case.
These are the most prominent examples of the NRA’s efforts to keep qualified judicial nominees off the federal bench without reason. But there are plenty more examples out there. One of the most appalling is that of Elissa Cadish, who President Obama nominated to fill a district court seat in Nevada back in February. The NRA immediately got to work to stop Cadish’s nomination. Why? One month before the Supreme Court’s Heller decision – in which it overturned decades of case law to state that the Second Amendment guarantees an individual’s right to own firearms – Cadish correctly answered a questionnaire about the current state of Second Amendment law. At the time, Cadish correctly stated that the law that she would follow as a district court judge did not include the individual right to bear firearms. After Heller, she clarified that she would of course follow current law, which now did include this right.
This was a sign of proper judicial restraint – district court judges are in the business of applying the law as interpreted by higher courts – but to the NRA it was an excuse to bring down a judicial nominee. The gun group strong-armed Nevada Sen. Dean Heller into opposing the nomination and that was that. Heller refused to give his permission for the Senate Judiciary Committee to even hold a hearing on Cadish (permission is traditionally required from both home-state senators), and her nomination foundered.
The NRA didn’t get involved with these judicial nominations because it had substantive reasons to oppose the nominees. It got involved because it is, in effect, a codependent wing of the Republican party. Greenhouse points out that it was Senate Republican Leader Mitch McConnell who reached out to the NRA about opposing Sotomayor, rather than the other way around. Senate Republicans want to stop President Obama from filling seats on the federal courts. They then used the NRA as a useful bludgeon to keep in line senators who might consider being reasonable. The NRA and the Republican leadership get what they want from this relationship. The rest of us get a gridlocked Senate, a vacancy crisis in the federal courts and nation awash in firearms.