Earlier this week, Senate Republicans were harshly criticized for filibustering a highly qualified Cuban American with no committee opposition nominated for a seat on the Eleventh Circuit. Yesterday, they doubled down and set their sights on an unopposed district court nominee, Jesse Furman of New York. As we noted yesterday, the absurdity of the move cannot be overstated. The Senate GOP wasn’t just moving the goalposts, they were moving the entire football field.
It appears that the barrage of deserved criticism they received for this outrageous escalation in their war against the American judiciary has had an effect: It was just announced that the cloture petition will be vitiated (i.e., withdrawn). More than five months after Furman was approved without opposition by the Senate Judiciary Committee, he will finally get his day on the Senate floor. In turn, assuming he is confirmed, more New Yorkers will get their day in court.
This is a victory for every American who wants to protect our nation’s judicial system.
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.
Senate Republicans – already being condemned for their unprecedented obstruction of highly qualified judicial nominees with strong bipartisan support – today responded to that criticism by escalating their partisan obstruction to even more extremes. Today, after finally overcoming the four-month obstruction of an unopposed circuit court nominee, Senate Democrats were forced to file cloture on the nomination of an unopposed district court nominee, one who worked for and has the support of Bush Attorney General Michael Mukasey: Jesse Furman, nominated to the Southern District of New York.
It would be hard to overstate just how absurd this is. When George W. Bush was president, Democrats routinely approved District Court nominees, frequently without even a recorded vote.
Adding to the absurdity of the filibuster, Republicans have given no reason to vote against Furman's confirmation. He is a respected lawyer who has devoted his legal career to public service, serving under both Democratic and Republican administrations. After law school, he clerked for Justice David Souter, Judge Michael Mukasey (a Reagan nominee to the Southern District of New York) and José A. Cabranes (a Clinton nomine to the Second Circuit). He worked as an Assistant U.S. Attorney in the Southern District of New York during the George W. Bush Administration. For two years during that time, he was detailed to work as Counselor to Mukasey, who had by then become Attorney General under President Bush. In 2009, he returned to the Southern District of New York to become Deputy Chief Appellate Attorney in the U.S. Attorney's Office.
One might think Mukasey's strong support for the nomination would give Republicans reason not to filibuster. He wrote this of Furman: "All I can hope to add is my own belief that he is a person to whom one can entrust decisions that are consequential to the lives of people and to the general welfare of the populace, with confidence that they will be made wisely and fairly ... and I urge that he be confirmed."
Mukasey is not alone. The ABA has analyzed his record and found him qualified. A unanimous Judiciary Committee agreed.
There are currently six judicial vacancies in the Southern District of New York. Furman's nomination to fill one of those vacancies has been pending on the Senate floor for five months now.
This latest filibuster is an outrage. Republicans haven't just moved the goal posts. They've moved the entire stadium. The American people deserve so much better than this.
With Republican obstruction of qualified consensus judicial nominees showing no sign of abating, Senate Majority Leader Harry Reid has filed cloture on the nomination of Adalberto José Jordán to the Eleventh Circuit Court of Appeals. The vote to break the Republican filibuster is scheduled for Monday at 5:30.
Jordán is one of the 18 nominees stuck pending on the Senate floor because Republicans refuse to allow a yes-or-no vote to be scheduled. He received the highest possible rating from the American Bar Association, with a unanimous panel finding him well qualified. Judiciary Committee members who looked over his record agreed, voting unanimously to advance his nomination.
Senator Marco Rubio – Jordán's home state senator and a fellow Cuban American – strongly supports the nomination. As he told the committee, "I think his experience and his resume will speak for itself. ... As a community, we're very proud of Judge Jordán's nomination and we look forward to his appointment."
Jordán immigrated from Cuba when he was six and is the quintessential American success story. Since 1999, he has served ably as a federal district court judge in Miami, where he has presided over nearly 200 trials on a wide range of civil and criminal matters.
The Circuit that he would join desperately needs this vacancy filled, so much so that the Administrative Office of the United States Court has formally declared it a judicial emergency. In other words, there are so many cases and so few judges that Americans are not able to get their day in court.
This nomination has been languishing on the Senate floor since October 13. That was four months ago. Republicans have absolutely no excuse for this latest obstruction. Hats off to Sen. Reid for "calling the question" on this critical nomination. Next we need to turn our attention to the other 17 nominees on the Senate's calendar and the other nominees who will be reported by the Senate Judiciary Committee despite the Republicans' efforts to slow walk nominations in Committee as well.
Before Senate Republicans graciously allowed a vote this afternoon on one of the 19 long-pending judicial nominations – just one, mind you – they did something this morning, that, unfortunately has become all too routine in their relentless efforts to slow-walk judicial nominations: They needlessly delayed committee votes on four additional highly qualified nominees. Republicans won't even let them advance to the floor to languish there, but are delaying them in committee for no reason.
As they have done for all but five of President Obama's judicial nominees, committee Republicans this morning exercised their option to "hold over" (i.e., delay) votes on judicial nominees. The routine use of this hold, without explanation, without regard to actual questions about the nominee, and almost without exception, is unprecedented. And while the delay, likely to be one week, is not by itself enormous, it has become a predictable component of the overall mechanism of obstruction that Senate Republicans have created to keep our nation's courtrooms from functioning effectively for the American people.
Three of the four vacant seats are judicial emergencies, and the three nominees from states with Republican senators have those senators' strong support.
As PFAW has written before:
No matter who the nominee is, no matter how qualified, no matter if confirmation is needed to address a judicial emergency, all the nominees [who are held over in committee] have something in common: They were nominated by a Democratic president, and that is all the reason Republicans need to obstruct the process and sabotage the judicial branch of the United States government.
So the fact that the bottleneck at the Senate floor didn't get worse today is hardly cause to celebrate.
Several senators are taking the floor today to condemn the needless partisan obstruction that is harming America's judicial system and denying Americans their day in court. With more than 10% of every court vacant or soon to become vacant, the crisis is the worst sustained shortage in 35 years. Yet with Republicans refusing to allow the Senate to vote even on nominees who unanimously cleared committee months ago, the crisis is not being resolved.
There are now 19 pending nominees waiting for a floor vote. 17 were approved by the Senate Judiciary Committee with very strong bipartisan support, and 16 were approved without any opposition at all. Thirteen have been pending for three months or more, nine would fill vacancies classified as judicial emergencies.
The obstruction is also preventing us from having a diverse federal bench: 14 of the 19 pending nominees being denied a vote are women or people of color.
Sen. Patrick Leahy, chairman of the Judiciary Committee pointed out a few minutes ago who is being hurt the most by the obstruction:
The costs are borne by the American people. More than half of all Americans – nearly 160 million – live in districts or circuits that have a judicial vacancy. … And they can be filled today – this morning – if Senate Republicans would just agree to vote on the nominations that have been reported favorably by the Judiciary Committee. The irony, Mr. President, is that if those nominees could be brought up for a vote, it would probably be a 100 to nothing vote on all or most of them.
Sen. Richard Blumenthal, speaking after Sen. Leahy, rightly called the American judicial system one of the great marvels of the world. The Senate needs to be allowed to fulfill its role in keeping that marvel vibrant and functional.
We should never minimize the importance of careful vetting and scrutiny when it comes to these nominees. But once that process is complete in the Judiciary Committee, blocking these nominees can only be bad for the American people as well as for the 160 million Americans who live in districts and circuits with vacancies whose nominees are sitting on the Senate calendar. They should not have their ability to access justice denied or delayed.
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 his weekly address this morning, President Obama followed up on his State of the Union theme of restoring the middle class in a time of unprecedented income inequality. A fair judicial system is a vital component of that effort, and the president condemned Senate Republicans who would sabotage our nation's courts. He specifically criticized Sen. Mike Lee of Utah:
Just two days ago, a senator from Utah promised to obstruct every single American I appoint to a judgeship or public service position – unless I fire the consumer watchdog I put in place to protect the American people from financial schemes or malpractice.
For the most part, it's not that this senator thinks these nominees are unqualified. In fact, all of the judicial nominees being blocked have bipartisan support. And almost 90 percent have unanimous support from the Judiciary Committee.
Sen. Lee's anger at President Obama for protecting the 99% from the untrammeled power of the 1% is no surprise. But it's also nothing new for Senate Republicans, as noted in this U.S. News and World Report article by People For's Marge Baker. Sen. Lee is only coming up with a new excuse to continue doing what Senate Republicans have been doing since Obama became president: obstruct the confirmation of judges who will run courtrooms where the 99% and the 1% stand equal before the law.
During last night's GOP presidential debate, Newt Gingrich perhaps unintentionally but perfectly encapsulated his party's distorted vision of the role of the judiciary in our constitutional structure. It came when Fox News moderator Megyn Kelly asked the candidates whether Congress should eliminate courts that issue decisions it does not approve or. As reported in the Wall Street Journal, a key part of the exchange went as follows:
GINGRICH: Sure. I'd ask, first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges? Eighteen out of 35 were abolished.
KELLY: Something that was highly criticized.
GINGRICH: Not by anybody in power in 1802. [emphasis added]
Putting aside the question of historical accuracy, note that Gingrich did not say "not by anyone in 1802." He was careful to limit the people whose criticism he deemed relevant to those who were in power in 1802.
One reason we have courts is to prevent those in power from using their official authority to harm those out of power – the tyranny of the majority. If the majority uses their control of government to pass laws harmful to minorities, you don't expect them to criticize their own actions. The criticism would come from those out of power who are their victims – the same people who courts are intended to protect.
That no other candidate found Gingrich's limited framing objectionable says volumes about their dangerously distorted vision of the role of courts in our society.