Yesterday, PFAW’s Marge Baker joined a distinguished panel of legal scholars, federal judges and officials representing members of congress and the White House at the Cleveland-Marshall College of Law in Cleveland, OH to discuss possible solutions to the unprecedented vacancy crisis in the federal courts. Republican obstruction in the Senate has severely impaired the important work of the federal judiciary, with serious consequences for the American people. Fortunately, the White House has signaled a renewed focus on ending the stalemate and restoring the court system’s ability to swiftly serve those who seek justice in a court of law.
• Marge Baker, Executive Vice President for Policy & Program, PFAW
• Hon. James S. Gwin, U.S. District Court, Northern District of Ohio
• Christopher Kang, Senior Counsel to the President, Office of White House Counsel
• Jeremy Paris, Chief Counsel for Nominations and oversight, Chairman Patrick Leahy, Senate Judiciary Committee
• Michael Zubrensky, Deputy Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice
• Jonathan Adler, Johan Verheij Memorial Professor of Law and Director, Center for Business Law & Regulation, Case Western Reserve University School of Law
The panel was sponsored by The Cleveland –Marshall College of Law, National Coalition of Jewish Women, Ohio Coalition of Constitutional Values, Alliance for Justice, American Constitution Society for Law and Policy and People For the American Way.
In a summit at the White House yesterday with 150 grassroots and legal leaders from 27 states, Attorney General Eric Holder and White House Counsel Kathy Ruemmler stressed the importance of maintaining fair and effective federal courts, and criticized Senate Republicans for creating gridlock that has left one in ten federal court seats vacant.
Holder stressed President Obama’s effort to nominated qualified and diverse nominees to the federal courts. 46 percent of the president’s confirmed judicial nominees have been women and 37 percent have been people of color, more than under any other president in history. “Our people are diverse, they are qualified and they will serve the American people well in their time on the bench,” he said.
While President Obama has nominated dozens of highly qualified, diverse Americans to the federal bench, his nominees have met with unprecedented obstruction from Senate Republicans.
“Republican obstruction and these delays on the floor aren’t happenstance. They’re strategic and they’re having a devastating impact,” Ruemmler told attendees.
Ruemmler said that the conservative movement “understands the important role courts play in all of the issues we care deeply about as a country.”
Today’s summit was a sign that progressives are beginning to care deeply about the courts as well.
“This matters. This really matters,” Holder said. “This is a key legacy for any president. It’s one of the ways that a president’s success can be measured.”
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:
We write a lot about “judicial emergencies”—situations where slow-downs in the judicial nominations process have led court systems to be woefully understaffed. These cases are not emergencies because judges have to work harder—they’re emergencies because when courts are overworked, access to justice is delayed.
Last week, Politics Daily’s Andrew Cohen explained what is happening in Arizona, where Chief District Court Judge John Roll was murdered when he stopped by an event with Rep. Gabrielle Giffords to talk with her about the overcrowded courts. Roll had been planning to request that Arizona be labeled a “judicial emergency” in order to loosen restrictions on speedy trials:
Roll did not live to see his request granted. But on Tuesday, less than three weeks after he was shot by accused gunman Jared Lee Loughner, Roll's successor finally did declare a "judicial emergency" in the state after consulting with the 9th Circuit's Judicial Council. The move by Chief U.S. District Judge Roslyn O. Silver allows federal judges in the state to wait for as long as 180 days between the time of the indictment or complaint and the time of trial, even if a criminal defendant wants to go to trial more quickly.
The administrative move could delay the Loughner case itself, depending upon whether the 22-year-old defendant's attorneys try to change the trial venue from Arizona to another state or if federal prosecutors decide to seek the death penalty against Loughner. Most federal murder cases do not go to trial quickly anyway, in large part because of the significant pre-trial work it typically takes for lawyers to prepare their cases. The government has not yet charged Loughner with a capital crime. The next hearing in the case is set for March 9.
The extraordinary action by Silver was taken because of the sheer volume of cases. According to the 9th Circuit: "The Arizona federal court has the third highest criminal caseload in the nation, driven by illegal immigration and drug smuggling across the U.S.-Mexico border. Criminal cases have increased 65 percent since 2008, when the federal government greatly expanded its law enforcement efforts along the border. The bulk of the criminal caseload is assigned to the court's Tucson division, where three judges currently handle approximately 1,200 cases each" (emphasis added).
There are currently 101 empty seats in the federal courts, 49 of which have been labeled as judicial emergencies [pdf]. Chief Justice John Roberts recently pleaded with the Senate to stop holding up judicial nominees, saying their stalling had resulted in “acute difficulties for some judicial districts.” Justice Anthony Kennedy told the Los Angeles Times, “It's important for the public to understand that the excellence of the federal judiciary is at risk.”
In an editorial memo last week, PFAW outlined the Senate obstruction that has been largely responsible for the slow pace of filling judicial vacancies in the Obama administration:
On the occasions when it has confirmed nominees to the bench, the Senate has slowed down the process to the point of absurdity. During the first two years of the George W. Bush administration, District Court nominees were confirmed in an average of 25 days. Under President Obama, the wait has averaged 104 days. For Circuit Court judges, the time has increased six-fold, from 26 days to 163 days on average.
Senators need only to look to Arizona to see the real impact that playing politics with judicial nominations has on the ability of citizens to get prompt access to justice.
Chief Justice John Roberts called on Friday for Senate Republicans to stop playing politics with judicial nominees. Referring to “the persistent problem of judicial vacancies,” Roberts urged the president and the Senate to find a way to fill the growing number of vacancies in the federal courts:
“We do not comment on the merits of individual nominees,” Chief Justice Roberts wrote on Friday. “That is as it should be. The judiciary must respect the constitutional prerogatives of the president and Congress in the same way that the judiciary expects respect for its constitutional role.”
But he identified what he called a systemic problem.
“Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes,” he said.
The upshot, he said, was “acute difficulties for some judicial districts.”
The chief justice noted that the Senate recently filled a number of vacancies. Including 19 recently confirmed judges, the Senate has confirmed 62 of Mr. Obama’s nominees. There are 96 federal court vacancies, according to the Administrative Office of the United States Courts.
“There remains,” the chief justice wrote, “an urgent need for the political branches to find a long-term solution to this recurring problem.”
Before the Senate left town for Christmas, it confirmed only 19 of the 38 judicial nominations that had been pending on its calendar. Many of the nominees, easily confirmed once their nominations reached a vote, had been waiting as long as a year just to get a vote from the Senate. Of the 19 nominees left on the calendar, the vast majority had little or no opposition from Republicans on the Judiciary Committee...but they all will start the confirmation process over again in the new year.
Add another set of voices to the growing chorus of Americans fed up with Republican leaders' unprecedented obstruction of judicial nominations: Federal judges nominated by Republican presidents. According to ThinkProgress:
[Last] week, seven Republican-appointed federal judges co-signed a letter warning of the consequences of the GOP's systematic obstruction of President Obama's judges. The letter [is] from the Judicial Council of the Ninth Circuit, which includes Republican appointees Alex Kozinski, Ralph Beistline, Vaughn Walker, Irma Gonzales, Frances Marie Tydingco-Gatewood, Richard Frank Cebull, [and] Lonny Ray Suko[.]
The letter states:
In order to do our work, and serve the public as Congress expects us to serve it, we need the resources to carry out our mission. While there are many areas of serious need, we write today to emphasize our desperate need for judges. Our need in that regard has been amply documented ... Courts cannot do their work if authorized judicial positions remain vacant.
While we could certainly use more judges, and hope that Congress will soon approve the additional judgeships requested by the Judicial Conference, we would be greatly assisted if our judicial vacancies - some of which have been open for several years and declared "judicial emergencies" - were to be filled promptly. We respectfully request that the Senate act on judicial nominees without delay.
Americans want a government that works. Why don't Senate Republican leaders agree?
In the wake of Citizens United and other rulings that put corporate bank accounts ahead of individual rights, it has become increasingly clear where the priorities of the Supreme Court’s conservative majority lie. Republicans in Congress, unlike most Americans, like what they’re seeing—and are doing everything in their power to make sure the Roberts Court’s philosophy is reflected in lower courts throughout the country.
Apparently not satisfied with the current conservative bent of the nation’s entire judicial system (nearly 40% of federal judges nationwide were appointed by George W. Bush), Republican Senators are trying to stall district and circuit court judicial nominations until they are in a position to appoint federal judges once again, packing the court even more firmly for corporate interests.
A recent study by the Center for American Progress found that the current Republican obstruction of judicial nominations is truly unprecedented. The graph below pretty much says it all:
The current Republican obstructionism is unprecedented. Even George H.W. Bush, whose party never controlled the Senate during his term, enjoyed a confirmation rate nearly double that of President Obama and the current solidly Democratic Senate.
Yesterday, several senators put a much-needed spotlight on the GOP’s obstruction of judicial nominations. Senator Sheldon Whitehouse of Rhode Island spoke about the special interests that are preventing public interest lawyer John McConnell, an extremely qualified nominee who enjoys bipartisan support, from serving his home state:
Why is it that nominees of President Obama are being held to a different, new standard than applied to the nominees of President Bush? Why have we departed from the longstanding tradition of respect to the views of home State Senators who know the nominees best and who best understand their home districts? … I ask this because we have a highly qualified nominee in Rhode Island, Jack McConnell, who was reported by the Judiciary Committee on June 17. It was a bipartisan vote, 13 to 6, with the support of Senator Lindsey Graham. Jack McConnell is a pillar of the legal community in Rhode Island…The Providence Chamber of Commerce has praised Jack McConnell as a well-respected member of the local community. Political figures from across our political spectrum have called for his confirmation, one of them being my predecessor as Rhode Island attorney general, Republican Jeffrey Pine.
…Notwithstanding the support of Senator Reed and myself, the two Senators from Rhode Island, notwithstanding that this is a district court nomination, notwithstanding the powerful support across Rhode Island from those who know Jack McConnell best, special interests from outside the State have interfered in his nomination. The U.S. Chamber of Commerce, not the Rhode Island chapter, the U.S. Chamber of Commerce has attacked Jack for having the temerity to stand up to big business, to the asbestos to representing the rights of the powerless. In doing so, the U.S. Chamber has created a cartoon image of Jack McConnell that bears no relation to the man Senator Reed and I know as a great lawyer, as a great Rhode Islander, and somebody who will be a great judge.
I ask my colleagues…do we want to let powerful out-of-State interests trump the better informed views of home State Senators about district court nominees?
This is not just a political question-- the GOP is so concerned about keeping the courts corporate-friendly in the long-term that they’re ignoring the very urgent short-term needs of the federal court system. While judicial positions around the country remain vacant, many Americans are forced to wait for inexcusably long periods to have their day in court as current judges struggle with an impossible workload. The Judicial Conference has declared 42 of the 99 current judicial vacancies “judicial emergencies.” Carolyn Lamm, President of the non-partisan American Bar Association, calls the current dearth of federal judges “urgent.” But the GOP clearly cares more about protecting their allies in the corporate world than allowing the lower court system to function.
After helping Elena Kagan sail through the Judiciary Committee, Chairman Leahy isn’t content resting on his laurels. Yesterday the Chairman censured his Republican colleagues for their obstructionism on lower profile but just as vital judicial nominations. When Republicans foiled his attempt to schedule discussion on 4th Circuit nominee Jane Stranch of Tenessee, who enjoys the bipartisan support of her home state Senators, Chairman Leahy called them out:
Senate Republicans have further ratcheted up the obstruction and partisanship that have regrettably become commonplace this Congress with regard to judicial nominees. We asked merely for a time agreement to debate and vote on the nomination. I did not foreclose any Republican Senator from voting against the nominee or speaking against the nominee but simply wanted a standard agreement in order to allow the majority leader to schedule the debate and get to a vote. This is for a nomination reported favorably by the Judiciary Committee over eight months ago with bipartisan support. Yet the Republican leader objected and blocked our consideration.
For anyone who still thinks that both parties engage in this kind of obstructionism when in the minority, Senator Leahy came prepared with statistics:
No one should be confused: the current obstruction and stalling by Senate Republicans is unprecedented. There is no systematic counterpart by Senate Democrats. In fact, during the first 2 years of the Bush administration, the 100 judges confirmed were considered by the Democratically controlled Senate an average of 25 days from being reported by the Judiciary Committee. The average time for confirmed Federal circuit court nominees was 26 days. The average time for the 36 Federal circuit and district and circuit court judges confirmed since President Obama took office is 82 days and the average time for Federal circuit nominees is 126 days. So when Republicans say that we are moving faster than we did during the first 2 years of the Bush administration they are wrong. It was not until the summer of 2001 that the Senate majority shifted to Democrats, but as soon as it did, we proceeded on the judicial nominations of President Bush, a Republican President. Indeed, by this date during the second year of the Bush administration, the Senate had confirmed 58 of his judicial nominations and we were on the way to confirming 100 by the end of the year. By contrast, Republican obstruction of President Obama's judicial nominees has meant that only 36 of his judicial nominees have been confirmed. We have fallen dramatically behind the pace set for consideration of President Bush's nominees.
…Indeed, when President Bush was in the White House, Senate Republicans took the position that it was unconstitutional and wholly inappropriate not to vote on nominees approved by the Senate Judiciary Committee. With a Democratic President, they have reverted to the secret holds that resulted in pocket filibusters of more than 60 nominees during the Clinton years. Last year, Senate Republicans successfully stalled all but a dozen Federal circuit and district court nominees. That was the lowest total number of judges confirmed in more than 50 years. They have continued that practice despite the fact that judicial vacancies continue to hover around 100, with more than 40 declared judicial emergencies.
As Chairman Leahy emphasized, these obstructionist tactics have rarely come with explanations. For example, Judge James Wynn, who was nominated first by President Clinton and then by President Obama and would become the first black Justice on the 4th Circuit, has been on anonymous hold for six months with no reason given.
Our judicial system can’t function properly without qualified judges on the bench. But Senate Republicans are leaving dozens of judicial vacancies open for purely political reasons. Good for Chairman Leahy for speaking out on this.
The Senate GOP spent the day repeatedly refusing to remove their holds on 108 of President Obama's picks to fill executive branch and judicial vacancies. In case you thought they actually object to these nominees:
One of the blocked nominees: former White House press secretary Dana Perino, picked for the Broadcasting Board of Governors.
Via David Weigel
In case you missed it, the GOP is not pleased about the passage of health care reform, and after careful consideration they’ve decided that the best strategy going forward is to stomp their feet harder and scream louder.
In legislative terms, that means that they’ve chosen to invoke an arcane Senate rule that requires unanimous consent for any committee meetings after 2 p.m. That’s right. GOP Senators are so angry that they won’t work after lunch.
In a statement, Senator Leahy explains what that means for the Judiciary Committee.
I have previously accommodated requests from Judiciary Committee Republicans to delay the Committee’s hearing to consider Professor [Goodwin] Liu’s nomination. I had intended to hold this hearing two weeks ago but, at the request of Republicans, delayed it until today. We had agreed, instead, to proceed to a hearing for Judge Robert Chatigny, a nominee to the Second Circuit Court of Appeals, on March 10. Republicans then reversed themselves and asked for additional delay in connection with that March 10 hearing. I, again, accommodated them. Earlier this week I sought to move this afternoon’s hearing to the morning, into the two-hour window of time after the Senate convened, that would not be subject to this arcane objection. Republicans asked that we keep it scheduled for this afternoon because it worked better for the schedules of the Republican members of the Committee, and they had planned to participate this afternoon. Now, having objected to holding the hearing this morning, they object to it not being held this afternoon. They pulled the plug on our hearing and put up roadblocks to the Committee’s process for working to fill judicial vacancies.
And, like most Republican obstruction tactics, it quickly moves from being “annoying” to being “harmful for our nation.”
Armed Services Chairman Carl Levin (D-Mich.) and Sen. Claire McCaskill both complained that Republicans kept them from holding their hearings on budget requests for the military's Pacific and strategic and police training contracts in Afghanistan.
That, in a nutshell, is the political strategy of the GOP: prevent any effort to assist our armed forces or allow for a functioning judicial branch out of sheer petulance.
You stay classy, guys.
Senate Judiciary Chairman Patrick Leahy lashed out today at the unprecedented obstruction of judicial and executive branch nominees by the Republican majority. There are currently 12 judicial and 15 executive branch nominees on the Senate Calendar that the Republicans are stalling. Some, like Dawn Johnsen, as Senator Leahy notes, have been awaiting action for more than nine months. The last judicial nominee, whom Republicans delayed for six weeks, was confirmed unanimously by a vote of 97 to zero. Since that vote on December 1st, not a single judicial nominee has been considered by the full Senate. There are now more judicial nominees pending on the Senate calendar than have been confirmed all year.
The Republican agenda of delay and obstruction is clear. The price to the American people is also clear. With the range of critical issues before this Administration, the President needs his team at the Justice Department in place. And, with the 97 current and 23 announced judicial vacancies reaching record proportions, the threats to the administration of justice are serious. As Senator Leahy said, “Justice should not be delayed or denied to any American because of overburdened courts and the lack of Federal judges.”