Senate Majority Leader Harry Reid announced today that one of the key focuses of the Senate’s next five weeks of work will be “clearing the backlog of judicial nominees that threatens the effectiveness of our justice system.”
Reid’s announcement is important for several reasons. Because of unyielding Republican obstructionism, Senate Democrats have been unable to schedule confirmation votes on all but a few federal judicial nominees in the past several months. This situation had created a backlog of nominees waiting for Senate votes and a vacancy crisis in the federal courts, where about one in ten seats is vacant.
The reason why it’s been so hard for Democrats to schedule votes on President Obama’s judicial nominees is that the Senate GOP has in the past few years taken full advantage of all the tools of obstruction that it has available. The Senate has to have unanimous consent to schedule an up-or-down vote – something that in the past has been routinely granted to judicial nominees with strong bipartisan support. But since President Obama took office, Senate Republicans have been refusing to grant votes on nearly every nominee – even the vast majority who have little to no Republican opposition -- effectively filibustering dozens upon dozens of nominees. Only after months of delay are the votes finally allowed. Last week, Senate Democrats made it clear that they’d had enough and filed cloture to end the filibusters of two of the nominees – each of whom was subsequently confirmed in overwhelming numbers.
That’s right: Senate Republicans haven’t just been obstructing nominees who they find fault with – they’ve been obstructing everybody. President Obama’s nominees have been forced to wait an average of 100 days after committee approval just to get a yes-or-no vote from the Senate. The average wait for George W. Bush’s nominees at this point in his presidency was 24 days.
This afternoon, senators voted on the nomination of Margo K. Brodie, to the U.S. District Court for the District of Eastern New York. Although she was unopposed in the Judiciary Committee, Brodie has waited for more than four months for her nomination to be voted on. She was approved on a vote of 86 to 2.
There are now nineteen judicial nominees still waiting for a Senate vote, most of whom were approved by the Senate Judiciary Committee with absolutely no opposition. Ten of them have been waiting three months or more from a vote, and ten have been nominated to fill officially-designated judicial emergencies. Fourteen of the twenty are women or people of color and one is an openly gay man.
Sen. Reid is doing the right thing in calling out Republicans on their obstructionism and ensuring that our courts continue to be fair and functioning.
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.
And the bipartisan cooperation keeps rolling on. This week, the Senate confirmed Judge Adalberto Jose Jordan to a seat on the federal Court of Appeals for the 11th Circuit in Atlanta. A visitor from another country might not have appreciated the proportions of this achievement, given the fact that Jordan, who was born in Cuba and who once clerked for Sandra Day O’Connor, had no discernible opposition.
But Americans ought to have a better grasp of how the Senate works. The nomination’s progress had long been thwarted by Mike Lee, a freshman Republican from Utah, who has decided to hold up every single White House appointment to anything out of pique over ... well, it doesn’t really matter. When you’re a senator, you get to do that kind of thing.
This forced the majority leader, Harry Reid, to get 60 votes to move Judge Jordan forward, which is never all that easy. Then there was further delay thanks to Rand Paul, a freshman from Kentucky, who stopped action for as long as possible because he was disturbed about foreign aid to Egypt.
All that is forgotten now. The nomination was approved, 94 to 5, only 125 days after it was unanimously O.K.’d by the Judiciary Committee. Whiners in the White House pointed out that when George W. Bush was president, circuit court nominations got to a floor vote in an average of 28 days.
No matter. Good work, Senate! Only 17 more long-pending judicial nominations to go!
The Senate this afternoon finally confirmed Judge Adalberto José Jordán to sit on the 11th Circuit Court of Appeals, which covers Florida, Georgia and Alabama. Jordán becomes the first Cuban American to join the 11th Circuit – an important victory for Florida’s large Cuban American population.
What wasn’t a victory for Cuban Americans, or for any Americans seeking justice in the desperately overworked 11th Circuit, was the long and frustrating process that led to Judge Jordán’s confirmation. Despite being a highly qualified nominee with broad bipartisan support, the GOP filibustered Jordán’s nomination for four months, only to vote overwhelmingly in his favor when the filibuster came to a vote. And once the filibuster was finally broken, one Republican senator, Rand Paul of Kentucky, used a little-used rule to postpone the final vote on Jordán another two days to push a completely unrelated policy priority.
In the Washington Post yesterday, columnist Dana Milbank wrote that the Jordán filibuster reflects the GOP’s puzzling indifference to Latino voters:
Jordan is the very picture of the American dream: Born in Cuba, he fled with his parents to the United States at age six and went on to become a lawyer and clerk for Justice Sandra Day O’Connor. With the support of his home-state senator, Republican Marco Rubio (Fla.), a fellow Cuban American, Jordan was nominated to become the first Cuban-born judge to serve on the 11th Circuit Court of Appeals, which covers Alabama, Georgia and Florida.
There is no serious objection to his confirmation — which makes the hazing he has experienced all the more inexplicable. Republicans slow-walked his nomination (he was approved unanimously by the Judiciary Committee in July), then filibustered his confirmation vote on the Senate floor. Even when the filibuster was broken Monday night (by a lopsided 89-5), a lone Republican, Sen. Rand Paul of Kentucky, used a procedural hurdle to postpone the confirmation vote by two days, to Wednesday.
Congressional staffers I checked with couldn’t recall a similar instance of blocking a confirmation even after a filibuster had failed. This would seem to be a unique humiliation for a man hailed by the Hispanic National Bar Association because of “the positive message this nomination sends to the Latino community.”
As Mitt Romney rightly pointed out in December, one of the most important issues riding on the upcoming presidential election will be the future of the federal courts.
Yet, if 2012 is like other election years, the courts will be discussed relatively little by the candidates. That would be a big mistake. Romney has already signaled to the Republican base that he will move the federal courts even farther right than they already are. He named Robert Bork, the judge whose legal views were so extreme his Supreme Court nomination was rejected by the Senate, to lead his “Justice Advisory Committee,” and has said he would seek to nominate judges like those who have made the current Supreme Court the most conservative in decades.
In an editorial this weekend, the New York Times explained how politics has reshaped the courts and the law under the past three Republican administrations. Courts picked by Mitt Romney and Robert Bork would be no exception:
Each party has its program and works to turn it into law. The great example of political change through legal change was the long, methodical effort to whittle away at segregation from within the legal mainstream that culminated in the court’s decision in Brown v. Board of Education. The conservatives’ legal-political strategy draws from Brown, but it is also vastly different in nature and design.
The struggle for school desegregation was waged by and on behalf of oppressed minority groups seeking to make good on the Constitution’s promise of equal rights. They faced strong opposition from the most powerful people in our society, in courts that were not necessarily sympathetic or overtly hostile to their cause. And they fought a long, incremental campaign.
When Lewis Powell Jr. energized conservatives by writing in 1971 that “the judiciary may be the most important instrument for social, economic and political change,” he was himself an incrementalist and expected others to be.
But the conservative legal battles of our modern times are being waged by the most powerful, often against the weak and oppressed. They began with a carefully planned and successful effort to reshape the courts to be sympathetic to conservative causes. They are largely aimed at narrowing rights, not expanding them — except where property and guns are concerned. And beginning with the Reagan administration, conservatives became impatient with the pace of change brought about from within the mainstream. They sought to remake law into a weapon of aggressive action.
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 a speech on the Senate floor today, Majority Leader Harry Reid criticized Senate Republicans for neglecting their “constitutional obligation” to confirm presidential nominees. As People For’s Marge Baker wrote last week inUS News & World Report, unprecedented obstruction from Senate Republicans has led to a vacancy crisis in the federal courts and contributed to Americans’ loss of confidence in Congress.
In his weekly radio address on Saturday, President Obama specifically called out Utah Sen. Mike Lee, who after complaining about the slow speed of Senate confirmations is now threatening to block every one of the president’s nominees.
Here are Sen. Reid’s remarks:
Americans believe Congress is broken. And it’s no mystery why.
Political divisions in this chamber are so great they often prevent the Senate from performing even its most fundamental duties.
The divisions are so great they have prevented this body from confirming presidential nominees – our constitutional obligation.
These days, it’s no longer enough to be a qualified nominee.
It’s no longer enough to have bipartisan support.
And in the case of judicial nominees, it’s no longer enough to be reported unanimously out of committee.
Last year, my Republican colleagues blocked or delayed scores of outstanding nominees. Why? Because they want to defeat President Obama, who made those nominations. That’s their number one goal.
And at the end of last year, Republicans refused to allow votes on 16 judicial nominees who were reported out of committee unanimously.
Unfortunately, this year may bring more of the same. Already this year, some Republicans have gone to the floor and threatened to drag out the confirmation process for every nominee for the rest of the year.
This Republican obstructionism is supposedly retribution for President Obama’s recess appointment of Richard Cordray – an eminently qualified nominee – to head the Consumer Financial Protection Bureau.
With a qualified leader at the helm, the Bureau will be able to effectively protect middle class families from the greed and excess of big Wall Street banks.
It will not impact smaller financial services firms that help Americans who don’t use banks. And it will not impact banks that deal fairly with consumers.
But it will serve as a watchdog against the kinds of abuses that nearly collapsed our financial system in 2008.
President Obama’s right to recess appoint Mr. Cordray is protected in the Constitution.
President Bush had the same right to make recess appointments – even though Democrats kept the Senate in pro forma session.
Bush didn’t exercise that right – or challenge the pro forma sessions in court – because Democrats worked with him to confirm hundreds of his nominees.
Unfortunately, Republicans have refused to work with President Obama as Democrats worked with President Bush.
Instead they are threatening political payback and more delays.
This brand of obstructionism is the reason Americans are disillusioned with Congress. They believe Congress can’t get anything done.
It will take collaboration between Democrats and Republicans to turn that perception around.
We should show the American people that with cooperation between our two parties, this body can accomplish great things.
In an op-ed in U.S. News & World Report today, People For's Marge Baker commends the president for mentioning the judicial nominations crisis in his State of the Union address, but says he wasn't telling the whole story:
In Tuesday night's State of the Union Address, President Obama called on the Senate to "put an end" to the unprecedented obstruction of his judicial and executive branch nominees, insisting that "neither party has been blameless in these tactics." He was right to call out the problem, but he was wrong that it's a bipartisan issue. It's fine for the president to be magnanimous, but the fact is only one party has systematically held hostage even the most basic tasks of governing in the hopes of making minor political gains. And that party is not the president's.
The nominations crisis that we face today exists largely because it can easily fly under the radar—and the GOP politicians behind it know that. This Republican Congress's intransigence has caused harm beyond the very public battles over the debt ceiling and tax cuts for millionaires. Under the unglamorous cover of judicial and executive branch confirmations, the Senate GOP has launched a campaign of strategic obstruction to prevent parts of the federal government from functioning at all.
This became clear in the relatively public battle to confirm Richard Cordray to head the Consumer Financial Protection Bureau. Senate Republicans admitted they had no problem with Cordray himself. Instead, all but two stated in a letter to the president that they would refuse to confirm him unless the new, congressionally created agency he was nominated to head was first substantially weakened. It was an unprincipled attempt to legislate via the Senate's power of advice and consent, which the president rightly sidestepped by installing Cordray with a recess appointment.
But the Cordray nomination was just the tip of the iceberg. With far less public attention, the GOP has been decimating the nation's courts, causing the judicial branch to face a historic vacancy crisis and Americans seeking their day in court to face unconscionable delays. This crisis is largely due to the chronic inaction of the Senate, which has been crippled by the Republican minority's abuse of the chamber's rules to block even consensus nominees from getting a yes-or-no vote.
In his State of the Union address last night, President Obama addressed the unprecedented Senate obstruction of judicial and executive branch nominees and urged senators to end the nominations gridlock.
Since Obama became president, the Senate GOP has conducted a steady campaign of obstruction against even entirely uncontroversial judicial and executive nominees. The statistics are unmistakable. Under President Bush, circuit court nominees waiting an average of 30 days for a vote from the full Senate after approval from the Judiciary Committee. Under President Obama, they have waited an average of 137 days. And district court nominees, who have traditionally been quickly and easily confirmed except under the most extraordinary circumstances have waited an average of 90 days for a Senate vote, compared to just 22 days under President Bush. The result has been a historic vacancy crisis in the federal courts, with over ten percent of seats vacant or soon to be vacant.
PFAW’s Marge Baker issued a statement last night echoing the president’s call for an end to the obstruction:
“President Obama is right to call for an end to such irresponsible and politically-motivated obstruction of his nominees,” said Marge Baker of People For the American Way. “For too long, the GOP has gotten away with its destructive agenda of obstruction, which has left more than 1 out of 10 federal judgeships vacant and resulted in unconscionable delays for Americans seeking their day in court. Laws exist to protect all of us, and courts are where the 99% and the 1% stand as equals. But even the best of laws don’t count for much if there aren’t enough judges to enforce them. Republicans in the Senate must start doing the job the American people hired them to do. The American courts are no place for partisan politics.”
We hope that the Senate takes the message to heart.
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.
The Senate GOP under President Obama has mastered the art of proactive apathy. Not content with neglecting their own jobs, Senate Republicans have expertly used their own dysfunction to prevent other parts of government from doing theirs. These efforts have consequences far beyond bureaucratic procedure: whether it's by crippling the courts or attacking agencies that hold corporations accountable, Republicans are making it harder for individual Americans to access the rights that a functioning government protects.
This week, Senate Republicans added two new public disservices to their resume. On Tuesday, they shattered the 2005 "Gang of 14" deal that prevented filibusters of judicial nominees in all but extraordinary circumstances, setting a standard that no nominee for the D.C. Circuit will be able to meet. As President Obama said about the filibuster of Halligan's nomination, "The only extraordinary things about Ms. Halligan are her qualifications and her intellect." And then on Thursday, they blocked President Obama's nominee to head a new federal agency simply because they do not want that agency to exist -- a move that will have untold consequences on future attempts to staff the executive branch.
These political power plays by a minority of senators are far more than "inside the Beltway" procedural dust ups. They signal the emergence of a party that is so intent on tilting the playing field in favor of the powerful that they will sacrifice basic public service in order to serve the interests of a powerful few.
On Tuesday, all but one Senate Republican refused to allow an up-or-down confirmation vote on Caitlin Halligan, a D.C. Circuit Court nominee who in any other year would have been easily approved by the Senate. The GOP struggled to find a reason to oppose Halligan on her merits, ultimately settling on a handful of trumped-up charges and the ridiculous argument that the D.C. Circuit, with one third of its seats vacant, didn't need another judge. When George W. Bush was president, many of these same Republicans loudly proclaimed that filibustering judicial nominees violates the United States Constitution, ultimately agreeing to the "Gang of 14" deal that judicial nominees would only be filibustered under "extraordinary circumstances." The vote on Halligan shattered that deal, opening the door for further political abuse of the judicial confirmation process.
On Thursday, the story repeated itself when the GOP succeeded in blocking a vote to confirm Richard Cordray to lead the newly created Consumer Financial Protection Bureau. Cordray, the former attorney general of Ohio, is as non-controversial as they come. He has a history of working with banks and with consumer advocates. He's backed by a bipartisan coalition of attorneys general, including the Republican who beat him in last year's election. Republicans in the Senate don't have any problems with Cordray. But they've made it very clear that they'll do everything in their power to keep the Consumer Financial Protection Bureau from performing the functions that it is required by law to carry out. They don't want anyone to lead the agency, because without a Senate-confirmed head, it cannot perform all of its legally assigned duties. This is not conjecture on the part of progressives; Republicans have brazenly admitted it.
Unfortunately, these votes are not aberrations. They are part of a clear pattern of the Senate GOP since President Obama's election. Unable to accept the results of an election they lost, and unable to get their own way on everything, they have resorted to obstruction and dysfunction. They have abused the extraordinary power the Senate minority is granted , blocking everything they get their hands on, sometimes, it seem, simply because they can. In the process, they are damaging America's system of justice and accountability and betraying the voters they were elected to serve.
Perhaps they are doing this to serve the powerful corporate special interests that do not want courts and agencies to hold them accountable, or perhaps they are doing it to score political points against a Democratic president, or some combination of those reasons. Ultimately, it doesn't matter. Either way, they are abusing their positions and throwing sand in the gears of the Senate to make it harder for ordinary Americans to get our day in court and to defend ourselves against the powerful. It's a deeply cynical strategy, and ultimately a deeply harmful one.
The Senate GOP has already made it more difficult than ever for qualified judicial nominees to make it through the confirmation process. Yesterday, they made it even harder.
Caitlin Halligan, President Obama’s nominee to fill the seat on the D.C. Circuit Court of Appeals that Chief Justice John Roberts vacated when he was appointed to the Supreme Court six years ago, is widely regarded as well-qualified and moderate. She has the support of a large and bipartisan group of prominent attorneys and law enforcement officials. Her legal views are decidedly non-controversial and middle of the road.
Yet Halligan yesterday became another victim of the Senate GOP’s strategy to defeat the Obama administration by preventing anything at all from getting done. When Democrats tried to get her a simple up-or-down confirmation vote, all but one Republican voted to keep up the filibuster against her. Why? Because, they said, the D.C. Circuit could keep on functioning with one third of its seats empty.
Andrew Cohen at The Atlantic summed up the implications:
If it were possible to strip the political varnish from the judicial nomination process, if we reduced the dark art down to its elemental tones, what we would see is both simple and maddening. 1) Our nation doesn't have enough federal judges working on cases. 2) The result is a growing backlog in the administration of justice that impacts the lives of millions of Americans. 3) There is a limited supply of capable, honest lawyers who are willing to take a pay cut, not to mention endure the background checks, to work as life-tenured jurists. 4) The Senate is unwilling to confirm dozens of these dedicated people out of partisan spite.
The Senate GOP’s ongoing efforts to keep the judiciary from functioning properly are both a powerful deterrent to talented lawyers who are recruited for the bench, and set a dangerous precedent for future Senate confirmation battles.
In 2005, the Senate’s “Gang of 14” cut a deal agreeing to only filibuster judicial nominees under “extraordinary circumstances,” which Sen. Lindsey Graham defined as “a character problem, an ethics problem, some allegation about the qualifications of the person, not an ideological bent.” Republican senators lined up to bash judicial filibusters, some even calling them unconstitutional, and expound on the importance of a functioning judiciary. Many of these, including Graham, have apparently changed their minds.
The filibuster of Halligan clearly shatters this deal. The desire to keep President Obama’s nominees off the bench is in itself not an “extraordinary circumstance.” The new standard for judicial filibusters the Senate GOP set yesterday is one that will hurt qualified nominees of this president and of the next president, whatever his or her party.
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.
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.