There is no shortage of senators opposed to the DISCLOSE Act. But while any of them will no doubt bloviate on why shining a light on campaign ad expenditures somehow limits free speech, junior Texas Senator Ted Cruz has taken his distaste for sunshine to a new level this month by holding the Federal Communications Commission hostage over the matter. Luckily, Sen. Cruz has folded, in part due to his dwindling stock among GOP leaders.
With two seats vacant on the FCC, the Senate Commerce committee held confirmation hearings this summer on candidates to fill the commission. While Michael O’Rielly, an advisor to Sen. Cornyn of Texas, faced a breezy nomination hearing in September, nominee Tom Wheeler’s June hearing grabbed media attention thanks to Sen. Cruz. Mr. Wheeler, a long time industry leader and President Obama’s nominee to chair the Commission, was asked by the senator for his thoughts on the FCC’s role in campaign ad disclosure. When Mr. Wheeler replied frankly that he did not know enough about the matter and could not answer, Sen. Cruz threatened to hold up the confirmation process until he was given a different answer.
Once the federal government reopened this month, the Senate was poised to pass the two nominees so that the FCC could handle its full docket of work. Then Sen. Cruz caused a new shutdown, this time blocking a unanimous consent confirmation vote for Mr. Wheeler because he wanted the presumptive chairman of the FCC to effectively set policy without the resources of the Commission at his disposal. With Mr. Wheeler’s vote tied to Mr. O’Rielly’s, the FCC was thus left without a chairman and its fifth commissioner. In the Senate, there are only two ways to overcome a hold like Sen. Cruz’s. The first is for the senator in question to remove his hold, while the other is to override the senator by way of a cloture vote requiring a supermajority of 60 votes.
Senate Majority Leader Harry Reid decided to call Sen. Cruz on his bluff Monday night. Sources have indicated that, given Sen. Cruz’s particularly vocal role in this month’s government shutdown, he has little clout among his Senate GOP peers. With a losing cloture vote imminent, it looks like Sen. Cruz set up a meeting Tuesday with Mr. Wheeler to hash out the nominee’s thoughts on disclosure with the senator. Mr. Wheeler came out of the meeting saying that this move by the FCC was not a priority, which mollified the Texas statesman. It is worth noting that this does not mean the FCC won’t take up disclosure rules for broadcasters airing political ads under a Wheeler chairmanship.
Sen. Cruz has regarded the FCC as an enemy in his anti-disclosure fight since March when Florida’s senior senator, Bill Nelson (who saw almost $10 million spent against him by outside organizations last November), addressed the issue. Sen. Nelson pointed out during a Committee hearing (at the 2:06:35 mark) that the FCC must require full on-air disclosure of campaign ad sponsors, and that this was not limited to just the umbrella entity (see Section 73.1212 for the authorizing language’s full text). He went on to say that the Supreme Court looked approvingly on disclosure in its Citizens United decision. Sen. Cruz’s response was to call such a reading “overtly partisan,” and that it would “undermine the integrity of the Commission,” which he stressed is non-partisan (2:28:05).
Yes, Sen. Cruz called the FCC non-partisan, then turned around and used it as a partisan tool to lock the Senate up over the matter of campaign disclosure, all while trying to force an agency nominee to set policy before he steps foot in the door.
Both Mr. Wheeler and Mr. O’Rielly got their Senate confirmation votes yesterday.
The latest condemnation of the Senate GOP's dangerous obstruction against executive and judicial nominees comes from Norman Ornstein, a resident scholar at the conservative American Enterprise Institute. In a column published in Roll Call, Ornstein blasted Senate Republicans for the damage they are doing to our country.
Last week, Republicans blocked a vote on the nomination of Caitlin Halligan to serve on the D.C. Circuit Court of Appeals, setting a new standard for nominees to that court that will be virtually impossible for any president of either party to meet. Just two days later, they blocked a confirmation vote for Richard Cordray to head the Consumer Financial Protection Bureau, admitting that they did so not because of any problems with him but because they do not like the law creating that Bureau. Next, two days ago, Senate Democrats tried to overcome Republicans' obstruction of ambassadorial nominees, with mixed results. Ornstein writes:
The good news on Monday was that the Senate, in a show of broad bipartisan support, confirmed Norm Eisen to be the U.S. ambassador to the Czech Republic.
Eisen had been in the post for the past year on a recess appointment, and by all accounts, Czech and American, had been doing an exemplary job protecting and advancing American interests and values in a country that is a critical ally to the United States and an important commercial and trading partner. Why the recess appointment? Because Sen. Chuck Grassley (R-Iowa) decided well over a year ago that Eisen, while serving in the White House, had not been truthful to the Senator's staff over his role in the dismissal of the inspector general of AmeriCorps. Never mind that a voluminous record showed that Eisen had not dissembled, that the entire board of AmeriCorps, left to right, Democrats and Republicans, supported the dismissal, and the actions were upheld in two federal courts. Grassley would not budge.
Senate Democrats filed a successful cloture petition and Eisen was confirmed by voice vote. But the obstruction continued with a politically motivated filibuster of Mari Carmen Aponte to be ambassador to El Salvador. Aponte is now serving under a recess appointment, which expires at the end of the month.
The ostensible reason to oppose her? Decades ago Aponte had a boyfriend who might have had ties to Fidel Castro's government. Never mind that Senators had access to her FBI file — and that she has had a succession of top-secret clearances after exhaustive security checks. Aponte did not fare well — she fell 11 votes shy of the 60 needed once again to overcome cloture.
In a different world — i.e., the world the United States knew from 1789 until a few years ago — her 49-37 margin would have meant a comfortable confirmation. No more. Filibusters used to be rare events for bills, rarer for executive confirmations, rarer still for judicial nominations. Now they are more than routine; they are becoming the norm. Holds were not as rare, but the use of holds to block multiple nominees for not weeks or months but years or until death, were not typical; now they are the standard.
Citing other ongoing examples of Republican senators sabotaging ambassadorial nominations to countries key to U.S. security, Ornstein sums up the situation:
This goes beyond partisan polarization to damage to the fabric of governance and worse — to damage to the vital interests of the United States. ...
[S]hame on a Senate which went from blocking a well-qualified nominee for an appeals court judgeship via filibuster to blocking a superbly qualified nominee for the consumer bureau, to yet another in a series of ambassadors stymied via holds and filibusters. This is no way to govern.
This morning began with 25 highly qualified judicial nominees who have been cleared by committee - 23 of them with strong bipartisan support and 21 unanimously - eligible for a quick floor vote. Unfortunately, Senate Republicans allowed only two of them to have a vote.
On the Senate floor today, Judiciary Committee Chairman Patrick Leahy blasted the GOP for their ongoing obstruction. After noting the fact that ten percent of the nation's courts are vacant, he turned to the consequences of preventing our nation's courtrooms from having enough judges to operate effectively.
[A Wall Street Journal article last week] highlights that over 2,000 citizens of Merced California who filed suit in 2007 over toxic chemical contamination stemming from a 2006 flood are still awaiting resolution, and only one civil trial has been held in the matter. In the article, Senior Judge W. Royal Furgeson of the Northern District of Texas is quoted warning that if decisions on contracts, mergers and intellectual-property rights "can't be reached through quick and prompt justice, things unravel for business." ...
A report published last month by the Administrative Office of the U.S. Courts demonstrates the extent of these delays in Federal court. Across the country, there are over 15,000 civil cases that have been pending for more than three years without resolution. The Administrative Office's data show that many of the circuits with the highest number of vacant district judgeships also have the highest backlog of pending cases. The Ninth Circuit has over 1,700 civil cases that have been pending for more than three years. There are currently 14 district judgeships vacant in that circuit, including five vacancies that the Administrative Office has classified as judicial emergency vacancies. The Fifth Circuit has over 1,300 civil cases that have been pending for more than three years. There are eight district judgeships vacant in that circuit, six of which are emergency vacancies.
Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court. While three years may be necessary for some of the most complex business disputes, it is unacceptable for hardworking Americans who are seeking their day in court. When an injured plaintiff sues to help cover the cost of his or her medical expenses, that plaintiff should not have to wait for three years before a judge rules on his or her case. When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute.
Those who routinely prevent votes on consensus nominees apparently have other priorities than the rule of law and the ability of Americans to have their day in court.
There are now 25 highly qualified judicial nominees whose nominations are pending on the Senate floor, 21 of whom cleared the Senate Judiciary Committee without opposition. As Republicans continue to prevent timely confirmation votes, the judicial vacancy crisis goes on. More than 10% of all lower federal courts are now or will soon be vacant. In fact, more than 30% of the current vacancies are judicial emergencies, which means there simply aren't enough judges to get the work of justice done.
In the Wall Street Journal Law Blog, Joe Palazzolo writes about the consequences:
Despite the surge in case loads, the number of authorized federal judgeships has risen just 4% since 1990. ...
Meanwhile, the number of pending federal criminal cases has jumped 70% in the past decade — to over 76,000, according to the Administrative Office of U.S. Courts.
The upshot is that fewer civil litigants are having their day in court. Instead of waiting, many are settling their disputes.
That can be appropriate in many cases, but there is “no shortage of plaintiffs who wind up taking inadequate settlements” or businesses that make unnecessary payments to end the expense and uncertainty of litigation, Ian Millhiser, a policy analyst at the Center for American Progress, a liberal think tank, told the Journal.
W. Royal Furgeson, a senior federal judge in Dallas, told the Journal that if decisions on contracts, mergers and intellectual-property rights “can’t be reached through quick and prompt justice, things unravel for business.”
A related Wall Street Journal article (subscription required) highlights some specific cases that have been delayed or derailed over the past few years due to the lack of judges available to handle the growing caseload. They include Elizabeth and Nicholas Powers, who sued their employer for sex discrimination and retaliation in 2008. As they were awaiting jury selection earlier this year, the judge halted the trial so he could preside over a growing number of criminal cases. Rather than continue to wait for a trial, the Powers settled the case.
The judge in the case, Mike McCuskey, who is also the chief federal jurist for the central district of Illinois, said in an interview he has no choice but to push back civil cases because of his criminal caseload. In 1997, federal court statistics show, Judge McCuskey's district had 55 civil cases that were pending more than three years. Last year, it had 1,200.
"Civil litigation has ground to a halt," Judge McCuskey said, adding that "you've got a right to sue but you do not get a right to a speedy jury trial."
President Obama has nominated highly qualified jurists to sit on our nation’s federal courts and ensure that every American gets their day in court … if only Senate Republicans would allow that to happen.
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.
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.
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.
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:
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.
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.
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.
As a bit of follow up to Michael's post about the Goodwin Liu vote, it is worth noting that Sen. Lisa Murkowski was the ONLY Republican senator to break with her party and do the right thing, voting to move the nomination forward to a full floor vote.
In 2005, she said, “Let me make it clear that I support an up-or-down vote on all nominations brought to the Senate floor, regardless of the president nominating them or which party controls the Senate.”
Murkowski said in a statement after today's vote, "I stated during the Bush Administration that judicial nominations deserved an up or down vote, except in ‘extraordinary circumstances’ and my position has not changed simply because there is a different president making the nominations."
Sen. Murkowski deserves to be thanked for her consistency, and for sticking to a commitment that many in her party also made but abandoned.
Imagine senators of one party filibustering a judicial nominee who has been hailed as one of his generation’s great legal minds by legal experts of both parties and across the ideological spectrum on the grounds that he is *too* qualified.
Well that's exactly what happened today.
In what could be the most egregious example of the GOP’s partisan obstruction of judicial nominations to date, Senate Republicans today blocked Goodwin Liu from receiving an up or down vote. Liu, a law professor and dean at U.C. Berkeley who as a nominee has the American Bar Association’s highest rating, was nominated for a seat on the 9th Circuit Court of Appeals by President Obama over a year ago, and has since been approved by the Judiciary Committee three times.
His credentials and grasp of the law and Constitution are impeccable. Liu’s only mistake: being too qualified.
At age 40, his confirmation to the 9th Circuit could put him in position to be the first Asian American Supreme Court nominee. Because of his intellectual heft, his commitment to Americans’ constitutional rights and his commonsense understanding of how the law impacts people’s lives, the prospect of Liu’s future elevation, and even his influence on a Circuit Court of Appeals, terrifies corporate special interests and right-wing ideologues ... the same people calling the shots with Republican senators.
Shame on them. The concocted justifications Republican senators used in their opposition to Liu were based on unbelievable distortions of his record by Radical Right activist groups, as well as Liu’s testimony in opposition to Supreme Court Justice Samuel Alito’s confirmation. They rested their opposition on lies because they know that a Liu filibuster makes a mockery of the supposed agreement between parties to employ a filibuster only in “extraordinary circumstances.” Everything about Goodwin Liu’s record and the breadth of his support indicates a legal expert squarely in the mainstream -- the only thing “extraordinary” about him is how good he is, and how deserving he was of confirmation.
Every GOP senator except Alaska’s Lisa Murkowski participated in the filibuster. If one or both of your U.S. senators are Republicans, CALL them right now and let them hear it. Tell them, “shame on you for filibustering Goodwin Liu,” and let them know that you will be working hard to hold them accountable in their state.
Make sure you SIGN our “Stop the Obstruction” petition to the Senate and let senators of both parties know that the continued obstruction of the president’s nominees is hurting our country and will not be tolerated.
We need Republicans to feel the pressure about their judicial obstructions just like they are feeling it about their attacks on Medicare. And Democratic leaders in the Senate need to know that they must be using every tool in their arsenal to combat this obstruction.
The Senate is currently debating the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals. Liu is a phenomenally well qualified legal scholar who has support across the political spectrum, as well as among a majority of U.S. Senators. However, because Senate Republican leaders are putting politics over all else, they are set on stymieing the majority and filibustering the nomination. A cloture vote to end this stalling tactic may occur as soon as tomorrow morning.
People For the American Way supports the nomination. We sent a letter this morning that says much of what we have been saying in person on the Hill for over a year. Among other things, the letter states:
Perhaps the most powerful testament to Professor Liu's superb qualifications is the extensive support his nomination has garnered from across the ideological spectrum. It is not only progressive and moderate legal thinkers who admire his work: He has received endorsements from conservatives such as Ken Starr, Solicitor General under President Ronald Reagan; Richard Painter, the chief ethics counsel for President George W. Bush; and Clint Bolick, Director of the conservative Goldwater Institute.
When a judicial nominee attracts such strong support independent of political ideology, you can be confident that he is exactly the kind of mainstream, talented, and fair jurist we need on the federal bench.
Although Liu has the support of a majority of senators, his opponents are working to block his nomination from receiving an up or down vote. Their claim is that Liu's nomination constitutes one of those rare "extraordinary circumstances" warranting a filibuster, under the benchmark developed by the Gang of 14 during the George W. Bush Administration.
By no measure can this nomination be considered to even approach "extraordinary circumstances." Even a cursory look at President Bush's nominees who were approved using that test – those whose nominations were not considered to constitute "extraordinary circumstances" – makes clear that Liu's nomination must be permitted to go forward.
- Pricilla Owen's dissenting positions on the Texas Supreme Court were so extreme that even her fellow conservatives on the Supreme Court in different cases described them with phrases like "an unconscionable act of judicial activism," "disregard of the procedural elements the Legislature established," "def[ying] the Legislature's clear and express limits on our jurisdiction," and "inflammatory rhetoric." Her nomination was not considered extraordinary, and the Senate afforded her an up-or-down vote for a seat on the Fifth Circuit, where she is now serving.
- Thomas Griffith pushed to severely curtail laws ending discrimination against women and girls' participation in school athletic programs, declaring "illegal" a test upheld by all eight of the nation's Circuit Courts of Appeals that had considered the issue. He was also suspended from the DC Bar for failure to pay mandatory Bar dues yet continued to practice law in the District during that time. Published reports and an examination of Utah law indicated that he had been engaged in the unauthorized practice of law in Utah for the four years prior to his nomination. Nevertheless, the Senate did not consider Griffith's nomination extraordinary, and he received an up-or-down vote confirming him to a seat on the DC Circuit Court of Appeals.
- Janice Rogers Brown criticized opposition to the Lochner decision, which began the period when the Supreme Court issued its most pro-corporate rulings—rulings that struck down laws requiring minimum wages, regulating working hours and conditions, and banning improper business practices. In addition, despite several Supreme Court rulings to the contrary, she explicitly suggested that Title VII of the 1964 Civil Rights Act is unconstitutional. Despite this record, her nomination was not considered an "extraordinary circumstance," and the Senate was allowed to cast an up-or-down vote, confirming her to the DC Circuit Court of Appeals.
- William Pryor called Roe v. Wade "the worst abomination of constitutional law in our history" and urged Congress to consider repealing or amending Section 5 of the Voting Rights Act. Despite the significant opposition that these and other extreme positions garnered, his nomination was not filibustered, and he was confirmed to the Eleventh Circuit Court of Appeals.
Each of these nominees attracted substantial controversy and was opposed by numerous civil rights and civil liberties groups, but not one was found to constitute "extraordinary circumstances."
The claim that Goodwin Liu is out of the mainstream as compared to any of these nominees simply does not bear scrutiny. In fact, a fair reading of his work makes clear that Liu is well within the judicial mainstream.
By any standard articulated by either party, Goodwin Liu's nomination deserves a vote on the Senate floor, and he should be confirmed to the Ninth Circuit Court of Appeals.
Tomorrow, we will learn which Republican senators are willing to toss logic, consistency, principles, and the good of the nation's court system out the window in order to score political points against a Democratic president.
Last week, Wisconsin Gov. Scott Walker suddenly turned an about-face on the issue of public workers. Although he previously believed that the only way to combat the job-killing scourge that is Wisconsin’s public sector was to end their right to collectively bargain for fair wages and benefits, he now believes that Wisconsin’s civil servants make such valuable contributions to the state that they deserve a pat on the back.
As noted in Wonkette, Walker is now accepting nominations within each agency for acknowledgment on an “Employee Recognition Day.”
Don’t worry, Governor. All is forgiven.
Last night, the Senate struck an agreement to confirm three of President Obama’s non-controversial judicial nominees. That’s great—but, as of this morning, it leaves 99 seats on the federal judiciary left to fill. And, as the long road to last night’s three easy confirmations shows, if the Senate’s behavior with judicial nominations doesn’t change, that number is not going to dwindle fast.
The stories behind the three nominees confirmed last night clearly illustrate the Senate dysfunction that has led to one in nine seats on the federal judiciary being vacant. Marco Hernandez, an Oregon judge, was first nominated to the federal district court in 2008…by George W. Bush. When President Obama renominated him July, 2010, he did not receive a vote in the Senate. When his nomination finally went to a vote yesterday, after three years and three nominations, he was confirmed unanimously.
Attorney Paul Kinloch Holmes was nominated for the federal bench in Arkansas in April, 2010. His nomination stalled all last year in the Senate, and President Obama renominated him last month. He was confirmed without a single dissenting vote. Diana Saldana of Texas, also confirmed without dissent last night, had also been nominated twice and seen her nomination languish on the Senate floor for almost a year.
The Washington Post today reports on the crisis in the federal judiciary created by the Senate’s failure to confirm judges at the rate that they’re retiring:
The crisis is most acute along the southwestern border, where immigration and drug cases have overwhelmed court officials. Arizona recently declared a judicial emergency, extending the deadline to put defendants on trial. The three judges in Tucson, the site of last month's shooting rampage, are handling about 1,200 criminal cases apiece.
"It's a dire situation," said Roslyn O. Silver, the state's chief judge.
In central Illinois, three of the four judgeships remain vacant after two of President Obama's nominees did not get a vote on the Senate floor.
Chief Judge Michael McCuskey said he is commuting 90 miles between Urbana and Springfield and relying on two 81-year-old "senior" judges to fill the gap. "I had a heart attack six years ago, and my cardiologist told me recently, 'You need to reduce your stress,' '' he said. "I told him only the U.S. Senate can reduce my stress.''
As we’ve pointed out here before, the judicial crisis is about far more than the health of overworked judges. Overworked courts mean slower access to justice for citizens:
The effect is most visible in civil cases, with delays of up to three years in resolving discrimination claims, corporate disputes and other lawsuits.
"Ultimately, I think people will lose faith in the rule of law,'' said Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit in California. "We as a nation believe that if you have a dispute, you go to court and within a reasonable period of time, you get a decision.''
Ultimately, it’s ordinary citizens who pay for the Senate’s failure to perform one of its simplest and most essential tasks—ensuring the fairness and functioning of the federal judiciary.
The Obama Administration is making another call for the Senate to stop its unprecedented holdup of the president’s judicial nominations. White House Counsel Bob Bauer said today that it’s time for the Senate to end its “cold war” over judicial nominees, reports TPM:
"We will do what it take to try to break through gridlock over some of these nominations," Bauer said at an American Constitution Society panel. He said the judicial crisis creates "egregious delays for Americans seeking their day in court around the country."
Bauer said there has been a disturbing lack of urgency in the political class about the crisis in the judicial system, but said he didn't want to get into the typical finger-pointing about who is responsible for the crisis.
"The facts speak for themselves," Bauer said, noting that the confirmation rate is perilously low and that the problem has been developing for a long time.
Numbers compiled by Senate Democrats in December said that the Senate saw the slowest pace of judicial staffing in a generation, with just 39.8 percent of Obama's judges being confirmed.
But however the process got to this point, Bauer said that there is a growing recognition that "we can not in good conscious" allow it to continue.
"Republicans as well as Democrats increasingly acknowledge -- some privately, some publicly -- that we are witnessing something profoundly troubling," Bauer said.
The slow pace of judicial confirmations has begun to have a real impact on the federal courts and their ability to provide swift access to justice. 49 vacancies on the federal bench have been labeled “judicial emergencies,” resulting in long delays for citizens waiting for their day in court. In all, there are over 100 empty seats in the federal courts.
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.