judicial nominees

Senate Obstruction Continues: The Chart

Last week, Senate Majority Leader Harry Reid told Politico that he plans to push forward on filling the federal courts, despite unprecedented Republican obstructionism. Here is what Americans who value the courts are up against:

Despite a vacancy crisis in the federal courts that has led to delayed justice for Americans across the country, Senate Republicans have been using every delay tactic in the books to prevent qualified nominees from getting through the system.

The dotted line represents the average time  President Bush’s confirmed judicial nominees at this point in his presidency had to wait for a floor vote after committee approval. The blue lines are President Obama’s nominees – almost all with overwhelming bipartisan support , yet mostly forced to wait for months on end for no reason.

If Senate Republicans keep filibustering these nominees, Sen. Reid will be forced to start a cumbersome and time-consuming cloture process for each and every one of them. Such filibuster abuse is a waste fo the Senate’s time, and it’s bad for America’s courts.
 

PFAW

Blinded by the Hate: The Real Problem With Judge Cebull's Email

This post originally appeared in the Huffington Post.

Earlier this week a Great Falls Tribune reporter found something startling in his inbox: a shockingly racist and misogynistic email forwarded from the most powerful federal judge in Montana, which "joked" that the president of the United States was the product of his mother having sex with a dog. The story soon became national news, with groups like ours calling on Judge Richard Cebull to resign. Cebull quickly apologized to the president and submitted himself to a formal ethics review, somewhat quelling the story. But the story is about more than one judge doing something wildly inappropriate and deeply disturbing. It's about a conservative movement in which the bile and animosity directed at the president -- and even his family -- are so poisonous that even someone who should know better easily confuses political criticism and sick personal attack. Come on: going after the president's late mother? Attempting to explain his email forward, Judge Cebull told the reporter, John S. Adams,

The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan. I didn't send it as racist, although that's what it is. Is sent it out because it's anti-Obama.

Judge Cebull is hardly alone in using the old "I'm not racist, but..." line. In fact, his email was the result of an entire movement built on "I'm not racist, but..." logic that equates disagreement with and dislike of the president with broad-based, racially charged smears. These smears, tacitly embraced by the GOP establishment, are more than personal shots at the president -- they're attacks on the millions of Americans who make up our growing and changing country. Mainstream conservatives have genuine objections to President Obama's priorities and policies. But since he started running for president, a parallel movement has sprung up trying to paint Obama as an outsider and an imposter -- in unmistakably racially charged terms. Too often, the two movements have intersected. The effort to paint Obama as a threatening foreigner sprung up around the right-wing fringe in the run-up to the 2008 election with the typically muddled conspiracy theory that painted him as both a secret Muslim and a member of an America-hating church. They soon coalesced in the birther movement, which even today is championed by a strong coalition of state legislators and a certain bombastic Arizona sheriff. But the birther movement, the "secret Muslim" meme and the idea that the president of the United States somehow hates his own country are no longer confined to the less visible right-wing fringe. Former House Speaker Newt Gingrich, until recently a frontrunner in the GOP presidential race, continually hammers on the president's otherness, most notably criticizing his "Kenyan, anti-colonial behavior." Rick Santorum flatly claims that Obama does not have the Christian faith that he professes, and eagerly courted the endorsement of birther leader Sheriff Joe Arpaio. And before they dropped out, Rick Perry and Herman Cain couldn't resist flirting with birtherism. But perhaps more than either of these fringe-candidates-turned-frontrunners, Mitt Romney has been catering to the strain of conservatism that deliberately confuses policy disagreements with racially-charged personal animosity. Romney went in front of TV cameras to smilingly accept the endorsement of Donald Trump, whose own failed presidential campaign was based on demanding the president's readily available birth certificate. And Gov. Romney continually attacks Obama -- falsely -- for going around the world "apologizing for America." Judge Cebull needs to take responsibility for his own actions. And if the GOP has any aspirations of providing real leadership to this country, it needs to jettison the deeply personal vitriol being direct against Barack Obama and start talking about real issues. When a federal judge has seen so much racially-charged propaganda against the president of the United States that he can claim not to know the difference between genuine disagreement and offensive personal smears, something in our discourse has gone terribly awry.

PFAW

Senate Set to Turn Attention to Judicial Nominations Backlog

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.
 

PFAW

White House Blasts Senate GOP for Filibuster of 11th Circuit Nominee

White House Press Secretary Jay Carney began his press briefing today by pointing out the absurdity of the Senate GOP’s persistent stalling of the president’s judicial nominees, most recently 11th Circuit nominee Adalberto Jordán.

Jordán is a consensus nominee supported by both of his home-state senators – Republican Marco Rubio and Democrat Bill Nelson – and if confirmed will become the first Cuban American to sit on the 11th Circuit Court of Appeals, which has jurisdiction over the largest Cuban American population in the country. What’s more, the seat he has been nominated to fill has been officially designated a judicial emergency.

Despite his qualifications, bipartisan support, and the historic import of the nomination, the GOP filibustered Jordán’s nomination for four months. After the Senate finally voted to end the filibuster last night Jordán’s nomination was held up once more for reasons having nothing to do with him or with the people of Florida, Georgia and Alabama. One senator, Rand Paul of Kentucky, used an obscure rule to take Jordán’s nomination hostage to promote a bill curtailing foreign aid to Egypt.

Carney told the press:

Before I get started, I wanted to make note, if I could, of a development in the Senate. As you may know, but may not, the Senate is soon scheduled to confirm Adalberto Jordán, our nominee for the 11th Circuit. Jordán is a current, well-respected District Court judge, supported by Senators Nelson and Rubio, and he was reported unanimously out by the Judiciary Committee months ago. And he will now be the first Cuban American on the 11th Circuit.

Despite his sterling credentials and the bipartisan support that he enjoys, Republicans filibustered this nomination. To overcome the filibuster, Leader Reid had to file cloture, a procedure that while once extraordinary is now commonplace out of necessity. Cloture was invoked last night, 89 to 5, but Republicans are still forcing the Senate to burn time in a blatant delay tactic. Leader Reid had to go through extraordinary measures to get a judge confirmed with no Republican opposition, and a seat he will fill is a judicial emergency seat.

Now, the reason why I raise this, even though Mr. Jordán will be confirmed, is that it is so indicative of a breakdown in the system when a nominee as highly qualified as he is, with bipartisan support as he has, who's reported out of committee unanimously, still faces filibusters. And you have to ask yourself why that is. It's just simply delay tactics, and they're shameful.

There are 17 other judicial nominations pending on the Senate calendar; 14 were reported out unanimously; seven of those would fill judicial emergencies and seven are represented by at least one Republican senator. And yet the delay tactics continue.

With that, I will take your questions. Hello.
 

PFAW

Florida Nominee to Test How Far GOP Will Take Obstruction

As Paul wrote earlier today, Senate Majority Leader Harry Reid has schedule a vote on Monday to break the GOP filibuster of Adalberto Jordán, a Florida judge nominated to fill a judicial emergency on the 11th Circuit Court of Appeals. If confirmed, Jordan would be the first Cuban American judge on the 11th Circuit, which oversees Florida, the home of the United States’ largest Cuban American population.

What’s most notable about this vote is that it’s happening at all.

Traditionally, nominees like Jordán – who has the support of both his home-state senators, a Republican and a Democrat, and who was approved unanimously by the Judiciary Committee – would be swiftly confirmed, not be filibustered by the minority party.

But the Senate GOP hasn’t been so fond of Senate tradition, or efficient management, when it comes to confirming President Obama’s nominees. Instead, the GOP is filibustering Jordán and sixteen other nominees, the vast majority of whom have broad bipartisan support.

Below is an updated chart comparing how long each nominee on the Senate calendar has been waiting for an up-or-down vote, compared to the average wait time for Bush’s nominees at this point in his presidency.

The difference is striking:

The Senate GOP has been doing everything it can to gum up the works of the Senate – even when it means causing a four month delay for a widely-admired, bipartisan, historic nominee for a seat that has been designated a “judicial emergency.”

The pressure is now on Sen. Marco Rubio, a new favorite in the GOP, to convince his fellow Republican senators to put aside politics and confirm Jordán.
 

PFAW

The Judicial Confirmation Crisis in One Easy Chart

We write a lot about the Senate GOP’s unprecedented obstruction of President Obama’s judicial nominees, but it can be hard to effectively convey the extent of the needless gridlock. We hope this chart helps:

The dotted line marks 24 days, the average time George W. Bush’s nominees – by this point in his presidency --had to wait between being approved by the Judiciary Committee and getting an up-or-down vote from the full Senate. The blue lines represent the number of days each of the nineteen nominees currently waiting for a Senate vote has been stalled. The dark blue lines – seventeen out of the nineteen – represent nominees who were approved with overwhelming bipartisan support  by the Judiciary Committee. These nominees have no recorded Republican opposition – instead, the GOP is stalling them just for the sake of stalling.

Fourteen of the nineteen nominees are women or people of color. Nine have been nominated to fill seats officially designated as judicial emergencies. All of them deserve prompt up-or-down votes from the Senate.
 

PFAW

Republican-Appointed Former Judge: Speed Up Judicial Confirmations

Timothy K. Lewis, a George H.W. Bush nominee who served on the Third Circuit Court of Appeals from 1992 through 1999, offers some perspective on how judicial confirmations were handled before they became mired in hyper-partisan gridlock:

Nineteen years ago, in the fall of 1992, I was nominated by President George H. W. Bush for a seat on the United States Court of Appeals for the Third Circuit. My confirmation hearing lasted one hour. In fact, I had no time to prepare for it. As a federal district judge, I was in the courtroom, charging a jury, when my secretary burst in with the news that my Senate hearing was to be the very next day. That is how much notice I had. When the vote was called only a few days later, I was unanimously confirmed.

Don’t get me wrong. This is not to celebrate me. It is to reflect on a better time for our politics and ask how things went so wrong. Among the 192 Article III judges confirmed during the elder Bush’s presidency, only David Souter and Clarence Thomas faced confirmation battles (with Thomas undergoing a very difficult confirmation battle). But, of course, they were under consideration for the Supreme Court.
 

Compare that now with the Obama administration. The president has had only 96 Article III nominations confirmed and 55 others remain in limbo, awaiting Senate action. They are stuck in a process that should by all constitutional standards remain rigorous, but shouldn’t it also be productive? In the same period of time, George W. Bush had 322 confirmed nominees and Bill Clinton had 372 confirmed.

The Obama administration was slow out of the gate on this one – nominations trickled forth in the early days of the administration when the President’s team should have been well-prepared with the names of nominees. But a considerable amount of the fault for this also has to be laid at the feet of Republicans who have made it a badge of honor to frustrate this President, himself a man of the law, from shaping the federal courts he inherited from George W. Bush. If you doubt this conclusion, reflect for a moment on the Senate minority leader’s comment shortly before the 2010 mid-term election when he said that the top – top — political priority over the next two years should be to deny President Obama a second term in office. Really, Senator? So where on the priority list do we put conducting the Senate’s constitutional business?

The gridlock in judicial nominations has been one of the less-noticed bits of collateral damage from the congressional GOP’s scorched-earth policy. But it has caused very real harm to Americans seeking justice in courts around the country -- there are currently 37 judicial emergencies in the federal courts in areas where the sitting judges are too overworked to provide prompt access to justice. Last week, Senate Republicans made an exception to their gridlock rule to fill the most publicized of those emergencies: the seat of Arizona Judge John Roll, who was murdered in the Phoenix shooting that critically injured Rep. Gabrielle Giffords. Roll had stopped by the Giffords event to tell the congresswoman about the urgent need to fill vacancies on the court.

Senate Republicans’ commitment to delay was made particularly clear when they refused to allow a floor vote on 20 pending nominees, most of whom had advanced with no opposition. The Senate GOP’s foot-dragging on judicial nominees is clearly meant to hobble the president’s attempts at basic governance and preserve the dominance of conservative George W. Bush-appointed judges. But it also amounts to the shirking of a basic duty of the Senate: to fill the judiciary with capable, non-politically-motivated judges.
 

PFAW

Senate Republicans Only Delayed Four of Five New Nominees Today!

This morning, Republicans on the Senate Judiciary Committee did something they have done only a handful of times: They exercised their discretion NOT to obstruct one of President Obama's judicial nominees.

The Committee was scheduled to vote on ten nominations this morning. With only four exceptions during the entirety of Obama's presidency, Republicans have exercised their prerogative to delay a committee vote for judicial nominees, even when those nominees are unopposed and are desperately needed to address burgeoning judicial emergencies. It is part of their larger strategy to throw sand in the wheels of the confirmation process in every way possible.

This morning, they did not request a delay for Jennifer Guerin Zipps, who has been nominated to be a district judge in Arizona. What makes Guerin Zipps different? The seat is a judicial emergency, but that has not mattered before. The nominee is unopposed, but even nominees without opposition and with the strong support of their Republican home-state senators have seen their votes delayed.

Only one thing makes this nomination different: Republicans know that the American people are paying attention, because this is to fill the seat that was held by Judge John Roll, who was among those killed in Tucson last January when Congresswoman Gabrielle Giffords was shot. Roll was seeking to meet Giffords to discuss the worsening caseload crisis overwhelming the area's federal judges. Americans were appalled by the violence, which brings this particular vacancy far more public attention than usual.

Knowing the American people are somberly watching, Senate Republicans declined to play political games with this nomination.

Not surprisingly, for all the other nominations that were scheduled for a committee vote for the first time this morning, they demanded a needless delay.

PFAW

Justice Ginsburg Mourns Breakdown of Judicial Nominations Process

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.

PFAW

Ongoing Focus on GOP Obstruction of Judicial Nominations

Since President Obama took office, Republican obstruction of his judicial nominees has been multifaceted, unstinting, highly partisan, hypocritical, and unprecedented in scope. When the Senate left town at the start of the month, Republican leaders prevented the Democrats from scheduling a vote on 20 extremely qualified nominees who had cleared the Judiciary Committee.

Yesterday, the White House Blog called attention to the obstruction and to the highly qualified and diverse federal bench that the president is working to build:

[T]he President's nominations for federal judges embody an unprecedented commitment to expanding the racial, gender and experiential diversity of the men and women who enforce our laws and deliver justice.

Unfortunately, the delays these nominees are encountering on Capitol Hill are equally unprecedented: earlier this month, the Senate left for its August recess without considering 20 eminently qualified candidates, 16 of whom had passed through the bipartisan Senate Judiciary Committee completely unopposed, a development the Washington Post called "not only frustrating but also destructive" in an editorial published yesterday.

As the Republicans know, their intransigence is exacerbating a destructive vacancy crisis in federal courtrooms, one that is making it harder and harder for Americans to secure their rights:

The victims of these delays, of course, are the American citizens who are being denied the fair and timely judicial proceedings they deserve because of the chronic shortage of federal judges on the bench. Stephen Zack, president of the American Bar Association, told Senate leaders in a recent letter that the abundance of vacant federal judgeships "create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions."

Click here to see the White House's infographic highlighting the obstruction and its consequences for families and businesses. It shows that:

  • The average wait time between committee approval and confirmation has leapt from 29 days for George W. Bush's circuit court nominees to an incredible 151 days for President Obama's.
  • For district court nominees, a 20-day wait for Bush's nominees has become a 103-day wait for Obama's.
  • Judicial vacancies have grown from 55 in 2009 to 91 today.
  • People are forced to wait an average of more than two years for a civil jury trial.
PFAW

ACLU DNA, Lead Paint, and the Judges who Made it Through GOP Obstruction

As we like to remind anyone who will listen, the current GOP senate has been shameless in its enthusiasm for obstructing judicial nominees just for the sake of obstruction. For instance, a PFAW memo on August 2 reported that of 24 nominees then waiting for confirmation votes, 21 had been voted through the Senate Judiciary Committee with no recorded opposition. Instead of sending through at least the unopposed nominees in a voice vote and moving on with its business, the Senate decided to keep these potential jurists off the bench for as long as possible – despite the pressing problem of unfilled judicial seats leading to slowed down justice. Ultimately, 4 of those nominees were confirmed by the Senate before it left for its August recess, and 20 remain waiting. (The Washington Post this morning lamented that such “gamesmanship is not only frustrating but also destructive”)

This sort of thing is a clear example of obstruction for obstruction’s sake. But what about the nominees who do face some GOP opposition? Last week, The Atlantic’s Andrew Cohen took an in-depth look at some of President Obama’s nominees who were ultimately confirmed by the Senate, but who received more than 25 “no” votes. The reason? Most were opposed because of a record fighting for civil liberties or against big corporations. Here are a few of Cohen’s examples:

7th U.S. Circuit Court of Appeals Judge David Hamilton (Votes 59-39). Even though his local Federalist Society endorsed this nephew of former Congressional leader Lee Hamilton, Senate Republicans mostly didn't because, as a trial judge, Hamilton had issued this 2005 ruling which had infuriated the religious right. Citing Supreme Court precedent, Judge Hamilton had ruled that Indiana's legislative prayer before each session could no longer be "sectarian" and regularly invoke the name of Jesus Christ.


Northern District of Ohio Judge Benita Y. Pearson (Votes 56-39). The first black female federal jurist in Ohio almost didn't get the gig. The precise reasons why are unclear. The People for the American Way suggested that she was a member of an animal rights group and thus earned the wrath of those in the cattle industries -- although 39 "no" votes is quite a lot of beef to have against a pioneering jurist.


District of Colorado Judge William J. Martinez
(Votes 58-37). By contrast, it is not hard to understand why this Mexico-born nominee roused so much Republican opposition on the floor of the Senate. Before he was nominated, Martinez advised the Americans with Civil Liberties Union and was a lawyer for the Equal Employment Opportunity Commission (just like Clarence Thomas before him, only Justice Thomas' EEOC experience evidently was a boon for his nomination). Of nominee Martinez, Sen. Jeff Sessions (R-Ala.) said: "It seems that if you've got the ACLU DNA you've got a pretty good leg up to being nominated by this president."


District of Rhode Island Judge John J. McConnell (Votes 50-44). It's also fairly clear why Judge McConnell almost didn't make it onto the bench. Senate Republicans didn't like him because the U.S. Chamber of Commerce didn't like him because, as a lawyer, McConnell had successfully sued Big Tobacco and fought for those harmed by lead paint. Evidently that's five Republican votes more serious in the Senate than ticking off Big Beef.


Northern District of California Judge Edward M. Chen
(Votes 56-42). Like Judge Martinez, Edward Chen evidently was touched with the "ACLU gene," which rendered him objectionable to Senate Republicans. Sen. Charles Grassley (R-Iowa), whose state's Asian population is nearly three times lower than the American average, voted against Chen because he thought the well-respected former magistrate judge employed the "empathy standard" of judging.


District of Oregon Judge Michael H. Simon
(Votes 64-35). Harvard educated? Check. Prior government experience with the Justice Department? Check. So why 35 "no" votes? Because Simon had worked for the ACLU. The seat he took on the federal bench, reported the Oregonian, had been vacant for 664 days, two months short of two years. How would you like to have been a litigant in Oregon during that time?


All of these nominees were ultimately confirmed – but not after plenty of stalling and debate over the value of “ACLU DNA” or of holding big corporations accountable for their actions. When we talk about the many nominees who are unopposed yet unaccountably stalled, it’s important to remember that the few nominees who do face GOP opposition don’t always face that opposition for the most convincing of reasons.
 

PFAW

Republicans Continue to Block Consensus Nominees

The U.S. Constitution establishes a federal court system that empowers ordinary individuals to hold accountable even the most powerful people and corporations. But when people's access to courts is choked off, ordinary people lose and the already-powerful benefit. One of the most devious ways to impede access to courts is to ensure there aren't enough judges to hear cases, and that is just what Senate Republicans continue to do through their unprecedented obstruction of President Obama's judicial nominees.

The Administrative Office of the U.S. Courts reports that there are currently 38 judicial emergencies in the United States. That is an administrative designation for courts where there are so many vacancies that the remaining judges cannot effectively do their jobs. The Senate could significantly reduce that number without delay by finally having floor votes on the 25 nominees who have been reported by the Judiciary Committee.

Most of these have been pending since at least May, yet Republicans, abusing their minority position, stubbornly refuse to allow a confirmation vote. You might not guess from the GOP's insistence on delay that all of these nominees except one enjoyed strong bipartisan support in committee. In fact, 22 of the 25 were approved without recorded opposition. There is simply no good reason not to hold an immediate vote on these consensus nominees.

Thirteen of these consensus nominees would fill judicial emergencies, immediately reducing by a third the number of urgently overstressed courts.

But as long as Senate Republicans continue to sabotage the judicial branch of the United States government, more and more Americans will find themselves unable to have their day in court. That's bad for America, but good for giant corporations seeking to avoid being held accountable.

It is clear which of these two Senate Republicans are looking out for.

PFAW

More Than 50 Legal Academics Blast Obstruction of 7th Circuit Nomination

More and more Americans are fed up with freshman Senator Ron Johnson's single-handedly blocking the Senate from even considering the nomination of Victoria Nourse to Seventh Circuit Court of Appeals. Yesterday, the Milwaukee Journal-Sentinel reported that:

Johnson's decision to block the judicial nomination of a University of Wisconsin law professor has drawn a pointed letter of protest from a group of legal academics around the country.

Johnson has singlehandedly held up consideration of Victoria Nourse for the Seventh Circuit Court of Appeals, which reviews federal cases from Wisconsin, Illinois and Indiana.

"For a single senator from one state within the Circuit to assert a hold, months after the nomination was complete, undermines Wisconsin's merit-based selection system, blocking highly qualified nominees from a hearing and a vote," reads the letter to Senate Judiciary Chairman Patrick Leahy of Vermont and the panel's top Republican, Charles Grassley of Iowa. "The effect is an unbreakable one-person filibuster."

The professors say a "a nominee of sterling credentials who has served under both Republicans and Democrats" should not be subject to "unending delay." You can click here to see the letter and its 53 signatories, some of whom served under Republican presidents.

Indeed, the letter shows Nourse's support across the ideological spectrum. In addition to progressive legal scholars, signers also include conservatives like Randy Barnett (a senior fellow at the Cato Institute who has challenged the constitutionality of the healthcare reform law) and David Bernstein (author of Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform). The signers also include ten scholars from Wisconsin law schools. All agree that Nourse would make an excellent judge.

Nourse was originally nominated by President Obama more than a year ago after consultation with Wisconsin's two senators. Unfortunately, because of the unprecedented obstruction of qualified judicial nominees by Senate Republicans, Nourse was among the dozens of nominees who the Senate was prevented from considering before 2010 came to an end. President Obama renominated her in January, with the new Congress that now includes newly elected Senator Ron Johnson.

Johnson complains he should have been consulted before the renomination even though the appropriate consultation with Wisconsin's senators occurred when Nourse was originally nominated. Other states with new Republican senators have faced the same situation with the re-nominations of judicial nominees who were originally nominated last year. In every case but Wisconsin, the new Republican senator has allowed the nomination to go forward. Only Senator Johnson has refused.

PFAW

Judiciary Committee Republicans: More and More Delay

As People For the American Way has noted before, Senate Judiciary Committee Republicans have exercised their prerogative to delay committee consideration of every single one of President Obama's judicial nominees by at least one week, with only four exceptions. More than seventy of these nominees were confirmed without opposition.

Republicans have no good explanation for this. They are doing this simply to obstruct. The routine use of this hold, without cause and almost without exception, is unprecedented. It is part of a larger set of procedural roadblocks the Senate GOP uses to obstruct confirmation of qualified nominees whose only "fault" is that they were nominated by a Democratic president.

This morning, the Senate Judiciary Committee was scheduled to vote on the nominations of eleven judicial nominees, five of whom were scheduled for the first time. To the surprise of no one, they, too, fell victim to this form of partisan obstruction.

There is no reason that Republicans should have delayed committee consideration of Second Circuit Court nominee Christopher Droney or district court nominees Robert D. Mariani, Cathy Bissoon, Mark R. Hornak, and Robert N. Scola, Jr. All five appeared before the committee last month to answer questions. However, of the eight Republican members of the committee, only Ranking Member Grassley showed up for the hearing, where he spent just a few minutes asking questions of each nominee. Although all committee senators had an opportunity to ask follow-up questions in writing, no Republican but Senator Grassley did so.

So there really is no good reason for Senate Republicans to have exercised their prerogative to hold the vote over by a week for any of these nominees. But Republican obstructionism has become the rule: Highly qualified judicial nominees are blocked solely because they were nominated by a Democratic president.

Committee Republicans should be asked what exactly they need to learn about these nominees that they don't know already ... and, if they have questions, why they chose not to avail themselves of the many opportunities they have had to ask them.

More importantly, they should be asked why they are actively sabotaging the confirmation process when there are judicial crises all around the country. Americans need access to the courts, not partisan mudfights.

PFAW

Empathy and The Loving Story

As a presidential candidate, Barack Obama let us know who he would be selecting as judicial nominees.

You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.

This “empathy standard” became a red herring used to attack the President and qualified jurists like Sonia Sotomayor and Elena Kagan. Then Senator Ted Kaufman (DE) emphasized just how wrong that argument was.

Likewise, President Obama’s promotion of empathy is not, as his critics suggest, the advocacy of bias. “Empathy,” as a quick look at the dictionary will confirm, is not the same as “sympathy.” “Empathy” means understanding the experiences of another, not identification with or bias toward another. Let me repeat that. “Empathy” means understanding the experiences of another, not identification with or bias toward another. Words have meanings, and we should not make arguments that depend on misconstruing those meanings.

As we continue to hear empathy trotted out as something sinister, it’s important to consider where our country might’ve been without it. That’s the lesson of The Loving Story.

Virginia’s argument that its law did not discriminate on the basis of race because it restricted both whites and African Americans equally might have persuaded Justices who were blind to the devastating impact of anti-miscegenation laws on everyday people. However, empathy allowed the Supreme Court in Loving v. Virginia to see what it really meant to ban interracial marriage. Yet just because that meant the Warren Court came down on the side of the “little guy,” doesn’t mean it ignored constitutional principles.

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

It just so happens that the Lovings were on the right side of the Constitution in their struggle to live with who they loved, where they were happiest, and where they wanted to raise their family.

If you get the chance to see The Loving Story, as I did at a DC screening earlier this week (more in Silver Spring next week), think about Mildred and Richard Loving and the countless couples who faced the same struggle. Think about how their state laws wronged not only them but also the Constitution. Think about how empathy put justice back on track.

Laura Murphy, Director, ACLU Washington Legislative Office, sums it up better than I ever could.

PFAW

Judge Rules that Corporations Can Give Directly to Candidates

And the Citizens United slippery slope continues…

A judge has ruled that the campaign-finance law banning corporations from making contributions to federal candidates is unconstitutional, citing the Supreme Court's landmark Citizens United decision last year in his analysis.

In a ruling issued late Thursday, U.S. District Judge James Cacheris tossed out part of an indictment against two men accused of illegally reimbursing donors to Hillary Clinton's Senate and presidential campaigns.

Cacheris says that under the Citizens United decision, corporations enjoy the same rights as individuals to contribute to campaigns.

The ruling from the federal judge in Virginia is the first of its kind. The Citizens United case had applied only to corporate spending on campaigning by independent groups, like ads run by third parties to favor one side, not to direct contributions to the candidates themselves.

...

"(F)or better or worse, Citizens United held that there is no distinction between an individual and a corporation with respect to political speech," Cacheris wrote in his 52-page opinion. "Thus, if an individual can make direct contributions within (the law's) limits, a corporation cannot be banned from doing the same thing."

Judge Cacheris – one of President Reagan’s earliest judicial nominees – acknowledged that another court addressing the issue has ruled that Citizens United does not invalidate a ban on corporate campaign contributions.

If the ban on corporate contributions to federal candidates were to be struck down by the Supreme Court, it would deal the biggest blow yet to federal clean elections laws that have been in place for over a century.

The first election after Citizens United turned into a corporate spending free-for-all. But it was just the beginning of what, without correction, may be a new regressive era of money in politics.
 

PFAW

With Liu Gone, GOP Still Twisting his Record

On Wednesday night, Berkeley law professor Goodwin Liu wrote to President Obama asking that the his nomination to sit on the Ninth Circuit Court of Appeals be withdrawn. Liu’s exit was the culmination of two years of smears, scapegoating and filibustering, in which the nominee never even got an up or down vote from the Senate.

The main gist of Republican opposition to Liu was the claim that he would be an “activist judge” in favor of making up constitutional rights willy-nilly (a claim that Republicans in the Senate have lobbed at any number of highly qualified judicial nominees, including current Supreme Court justice Elena Kagan, but interestingly not at Republican nominees who have shown strong streaks of creative legal interpretation).

In an op-ed earlier this week, the New York Times singled out Sen. John Cornyn for his false claim that Liu holds the “ridiculous view that our Constitution somehow guarantees a European-style welfare state.” Yesterday, in a letter to the editor, Cornyn fought back, providing this quote from a 2006 law review article by Liu to back up his claim:

On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. ... Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training and a robust earned income tax credit.

What is interesting about this quote is that it doesn’t say what Cornyn says it says. At all. Nowhere in the quote -- which Cornyn points to as decisive evidence that Liu wants the courts to turn us into Denmark -- does Liu say that the courts should enforce a social safety net. In fact, Liu is careful to specify that he is discussing the duty of Congress to create a “legislative agenda” that fulfills the highest ideals of the Constitution, rather than a judicial responsibility to enforce that agenda.

Elsewhere in the article [pdf], Liu makes it perfectly clear that he sees it as the duty of Congress, not the courts, to guarantee basic living standards for citizens. He even explicitly states that he intentionally doesn’t use the term “rights” because that would imply “judicial enforceability” of the values that he’s discussing:

In this Article, I do not address whether the Supreme Court or any court should hold that the Fourteenth Amendment guarantees an adequate education. Although that question remains open in the case law, my thesis is chiefly directed at Congress, reflecting the historic character of the social citizenship tradition as “a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts.” Whatever the scope of judicial enforcement, the Constitution—in particular, the Fourteenth Amendment—speaks directly to Congress and independently binds Congress to its commands. Thus the approach to constitutional meaning I take here is that of a “conscientious legislator” who seeks in good faith to effectuate the core values of the Fourteenth Amendment, including the guarantee of national citizenship.

From this perspective, the language of rights, with its deep undertone of judicial enforceability, seems inapt to probe the full scope of a legislator’s constitutional obligations. As Professor Sager has observed, “[T]he notion that to be legally obligated means to be vulnerable to external enforcement can have only a superficial appeal.” It is more illuminating to ask what positive duties, apart from corresponding rights, the Fourteenth Amendment entails for legislators charged with enforcing its substantive guarantees. Framed this way, the inquiry proceeds from the standpoint that Congress, unlike a court, is neither tasked with doing legal justice in individual cases nor constrained by institutional concerns about political accountability. Instead, “Congress can draw on its distinctive capacity democratically to elicit and articulate the nation’s evolving constitutional aspirations when it enforces the Fourteenth Amendment.” By mediating conflict and marshaling consensus on national priorities, including the imperatives of distributive justice, Congress can give effect to the Constitution in ways the judicial process cannot.

Thus the legislated Constitution, in contrast to the adjudicated Constitution, is not “narrowly legal” but rather dynamic, aspirational, and infused with “national values and commitments.” …

(emphasis is mine)

Cornyn and his pals in the Senate know what was in the article they attacked. Liu even explained it to them in detail in response to written questions from the Senate Judiciary Committee [pdf]. But it was easier to willfully misinterpret Liu's writing and paint him as irresponsible than to engage in a substantive debate on his qualifications.

 

PFAW

Religious Right Groups And Chamber of Commerce Fail To Block District Court Nominee

Cross-posted on Right Wing Watch

Religious Right and pro-corporate groups failed today to block President Obama’s nominee for U.S. District Court in Rhode Island, John McConnell, from receiving an up-or-down vote in the Senate. The Senate invoked cloture on McConnell’s nomination in a 63-33 vote, defeating the filibuster against McConnell. Filibusters against district court judges are extremely rare—only a handful of District Court nominees have ever faced cloture votes, and none have ever been blocked—and many Republicans previously vowed they would never filibuster a judicial nominee.

Today’s vote came after a long wait for McConnell: according to The Providence Journal, the delay caused by the concerted right-wing effort to block McConnell forced Rhode Island’s chief federal judge to “take the unusual step of reassigning more than two dozen civil cases to judges in New Hampshire and Massachusetts.”

Why the tough fight? McConnell faced virulent opposition from the Chamber of Commerce over his role fighting big tobacco companies and lead paint manufacturers. The Chamber and other groups that oppose corporate accountability found allies in the Religious Right groups that decided to fight McConnell as well.

The Conservative Action Project made McConnell a top target of their efforts. The group includes pro-corporate organizations like the 60 Plus Association, National Taxpayers Union, Americans for Limited Government, Citizens United, and American Tax Reform, along with social conservatives such as the Family Research Council, Traditional Values Coalition, Heritage Action, American Values, Liberty Counsel Action, and Eagle Forum. The Conservative Action Project’s Memo to the Movement [PDF] claimed McConnell was unqualified to serve in the judiciary because he was a trial lawyer with a history of challenging big business.

Eagle Forum derided him as a “pro-choice, anti-business, pro-judicial activism nominee” who “has made numerous anti-business statements.” The Family Research Council slammed McConnell for his ties to the Southern Poverty Law Center, one of the country’s most prominent civil rights organizations, and Phillip Jauregui’s Judicial Action Group said that his link to the SPLC and the American Constitution Society shows he “supports organizations who support homosexual marriage and oppose conservative politicians.”

While the Corporate Right and the Religious Right filibuster of the McConnell nomination failed, many of these organizations will continue to work together to block other qualified judicial nominees and aggravate the country’s burgeoning judicial vacancy crisis.

PFAW

Another View of the Judicial Vacancy Crisis

The Los Angeles Times today highlights the judicial vacancy crisis by spotlighting the senior judges who have already retired, but who are still needed to hear cases due to the lack of new judges being confirmed.

As federal courts stagger under the weight of mounting caseloads and vacant judgeships go unfilled for years, senior judges like [Betty] Fletcher have come to the rescue, especially in the 9th Circuit, where they shoulder a third of the legal load.

"It's kind of a double whammy," Fletcher said of the courts that have had no new judgeships added in 21 years and that have declining numbers of active judges because of partisan posturing in Congress. Nearly 11% of the nation's 875 lifetime positions are empty.

Senior judges, working overtime to keep the wheels of justice turning, earn the gratitude of their overwhelmed colleagues. But they do not earn a penny more for continuing to work, many of them almost full time, than they would if they were to hang up their robes and head for the golf course.

Of course, as another judge points out, the real victims of the Senate’s inaction on judicial nominees aren’t the judges themselves, but the ordinary people who need their cases to be heard.

"I feel a responsibility to the litigants," said [Judge Dorothy] Nelson, 82. "The courts are not for the judges, and they are not for the lawyers. They are for the people who have real grievances that need to be heard."

In recent weeks, the rate of confirmations in the Senate has risen slightly, but it’s still nowhere near fast enough.

Americans deserve a judicial system that works. Thanks to the obstruction and delay caused by Senate Republicans, that’s not what we’re getting.

PFAW

Still More Bipartisan Support for Goodwin Liu

Richard Painter, once the chief White House ethics lawyer for President George W. Bush, has a comprehensive, well-researched piece in the Huffington Post whose title says it all: "Qualified, Measured, and Mainstream: Why the Senate Should Confirm Goodwin Liu." Now a professor at the University of Minnesota, this conservative lawyer is one of the many legal scholars from across the political spectrum to support Liu's nomination.

Despite this broad support, perhaps no jurist nominated to the federal bench by President Obama has been maligned, mischaracterized, and mistreated by far right extremists more than Goodwin Liu. Point by point, Painter demolishes the myths about Liu. As Painter explains in detail, the caricature the far right has created bears no relation to reality. As he writes:

Liu's opponents have sought to demonize him as a "radical," "extremist," and worse. National Review Online's Ed Whelan has led the charge with a "one-stop repository" of attacks on Liu. However, for anyone who has actually read Liu's writings or watched his testimony, it's clear that the attacks--filled with polemic, caricature, and hyperbole--reveal very little about this exceptionally qualified, measured, and mainstream nominee. ...

This post brings together a variety of material about Liu:

  • First, I review Liu's background, qualifications, and key endorsements.
  • Second, I highlight two letters from respected authorities that shed important light on Liu's scholarly record.
  • Third, I provide several responses to various attacks on Liu.
  • Fourth, I address Liu's opposition to the Supreme Court confirmations of Roberts and Alito, two Justices whom I vigorously supported as a Bush administration lawyer and whom I believe were outstanding additions to the Court.

These materials summarize why Liu is an excellent choice for the federal bench. But even if you read this entire post, nothing substitutes for reading Liu's writings or watching his testimony for yourself. That is how I reached the conclusion that Liu deserves an up-or-down vote in the Senate and ought to be confirmed.

Liu's nomination has been stalled by Republican senators for more than a year. Today, he appears yet again before the Senate Judiciary Committee. When the committee once again approves his nomination and sends it to the Senate floor, leadership should schedule a vote, defy any GOP threats to filibuster, and get this most talented of judicial nominees confirmed at last.

PFAW