Obstruction

The Slow Pace of Diversity in the Courts

NPR reports today on President Obama’s unprecedented efforts to bring diversity to the federal bench:

The White House says almost half of the 97 candidates who have won confirmation during Obama's presidency are women; about a quarter are black. And Obama has nominated four openly gay people, more than any other president. He's also doubled the number of Asian-American judges on the bench.

Obama continued that pattern earlier this week when he nominated Adalberto Jose Jordan to serve on the U.S. Court of Appeals for the 11th Circuit and Miranda Du, an Asian American who lived in a refugee camp in Malaysia for almost a year as a child before coming to the U.S., for the district court in Nevada.

But that strategy may have a cost, says Caroline Fredrickson, who leads the American Constitution Society and has been following the judge nominees closely.

"Obama is nominating many more diverse nominees than his predecessors ... strikingly so," Fredrickson says. "But the nominees are not getting confirmed with the same kind of success."

Some of the longest waiting nominees, Louis Butler of Wisconsin, Charles Bernard Day of Maryland and Edward Dumont of Washington happen to be black or openly gay.

"For women and minorities, it's just been a bigger hill to climb before they actually get a vote," Fredrickson says. "And so for whatever the reasons, the facts speak for themselves."

Yes, the facts do speak for themselves. PFAW, in a memo released Tuesday, calculated that so far, the president’s women and minority nominees have waited on average 22 percent longer for a Senate confirmation vote than white men.

But the Senate’s slow pace confirming women and minority nominees has fed into a larger, equal opportunity obstruction agenda. As of Tuesday, there were 89 open seats on the federal judiciary, 37 of which had been designated as “judicial emergencies.” Pending on the Senate floor were 24 nominees who the Senate could easily have voted on, 21 of whom had no recorded opposition whatsoever in committee. Yet Republicans allowed a vote on only four of them. Twenty are still waiting for votes allowing them to take their posts.
 

PFAW

Goodwin Liu Nominated to California Supreme Court

Today, Governor Jerry Brown appointed Goodwin Liu to serve on the California Supreme Court. Liu, a professor at UC Berkeley with extensive experience in public service, is an exceptionally well-qualified legal scholar. 

“He is a nationally recognized expert on constitutional law and has experience in private practice, government service and in the academic community,” Brown said in his announcement. “I know that he will be an outstanding addition to our state supreme court.”

 Liu’s appointment to the California high court comes after President Obama had unsuccessfully nominated him to the U.S. Ninth Circuit Court of Appeals. Although his sterling credentials were not in doubt and he had strong bipartisan support outside the Senate, unprecedented obstruction by Senate Republicans eventually prevented Liu’s confirmation. After years of claiming that judicial filibusters were unconstitutional when George W. Bush was president, Republican Senators did an about-face that would have done Mitt Romney proud once Obama took office, and they shamefully prevented the Senate from voting on Liu’s nomination.

Governor Brown’s decision is a testament to Professor Liu’s outstanding judicial temperament and readiness to serve. Liu says he is “deeply honored” by the nomination – and this honor is well-earned. Californians will be fortunate to have someone of Goodwin Liu’s caliber on their state supreme court.

PFAW

Republicans Continue to Block Consensus Nominees

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

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

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

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

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

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

PFAW

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

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

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

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

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

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

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

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

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

PFAW

Judiciary Committee Republicans: More and More Delay

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

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

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

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

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

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

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

PFAW

Senate to Try New Thing Called 'Work'

Senate Majority Leader Harry Reid has cancelled the scheduled 4th of July recess, in the hopes that the Republican obstructionists in the upper chamber might finally allow some real work to take place on behalf of the American people. The debt talks certainly deserve attention, but this is also a great opportunity to whittle down the critical mass of still-unconfirmed presidential nominees. The number of vacant positions, particularly in the judiciary, is an embarrassing testament to the unprecedented obstruction that is taking place. According to PFAW’s Marge Baker as reported in the Huffington Post, we can’t even begin to tackle this problem unless the Senate actually shows up for work:

Baker sees a simple means of drilling through the obstruction by embarrassing an opposition that has chosen to enjoy fictional days at the office at a time when most Americans are working extra hard to keep their jobs in a tough economy.

“One way to do that is stay in session and work -- force them to work -- and get something done,” Baker said, referring particularly to the Senate where there is an enormous backlog of unfinished business on the appointment front alone.

Of nearly 300 civilian appointments Obama has made this year, fewer than 100 of them have been confirmed by the Senate -- even when there is no opposition.

It’s particularly stark with judicial appointees. Baker noted that there are 15 judge nominees who have been unanimously approved by the Senate Judiciary Committee -- nine of them women or minority appointees -- yet none have made it to the floor of the Senate.

To her, that just looks like obstruction. And even worse, in her mind, is the idea that Republicans simply want to flout the law by refusing to confirm anyone to the CFPB -- unless the law is changed.

PFAW

After Long Delays, Senate Confirms 3 DOJ Nominees

The Senate today confirmed three of President Obama’s nominees to fill long-vacant posts in the Justice Department, including, at long last, a leader for the DOJ’s Office of Legal Counsel.

The Senate confirmed attorney Virginia Seitz to head the Office of Legal Counsel, which hasn’t had a permanent, Senate-confirmed head since 2004. President Obama’s first nominee to fill the position, the well-respected and highly qualified law professor Dawn Johnsen, came under fire from Republicans for her support of abortion rights and opposition to torture, and withdrew her nomination last year after over a year of obstruction and gridlock

The OLC essentially acts as the White House’s private law firm, advising the president and executive branch agencies on the constitutionality of their actions

Besides Seitz, James Cole was confirmed to serve as Deputy Attorney General, a position that has been vacant since February 2010, and Lisa Monaco was confirmed to lead the DOJ’s National Security Division, which has been vacant since March.

PFAW

Issa to Dems: We'll Pick Your Witnesses For You

Last week, Rep. Patrick McHenry, chairman of a House Oversight and Government Affairs subcommittee, reached a new low of legislative immaturity when he accused Obama advisor Elizabeth Warren of lying about the schedule she had set with his staff. Now, it seems, committee chair Darrell Issa is trying to top him.

Issa has demanded that, in a departure from the way House committees traditionally select witnesses for hearings – where the majority and minority party each pick a certain number – Issa would now be picking some of the witnesses allotted to his committee’s Democratic minority. Whenever the committee’s Republicans call a witness from the Obama Administration, Issa declared, that witness would be docked from the total number allowed to the committee’s Democrats….even if Democrats never wanted that witness in the first place.

Given that our democratic government is built on the idea that minority viewpoints still can get a voice, this change of rules was not happily met with by some of the more reasonable members of the committee.

Democratic Rep. Gerald Connolly gave a heated response, saying he would advise the administration not to send any witnesses to the committee until the rules were reversed: “But the minority has rights, and if the majority wishes to actually join on this issue and dare to tell us who our witnesses will be, and to designate administration witnesses as our witnesses against our wishes, then we're going to advise that administration to not cooperate with the members of the majority until our rights are recognized and respected.” Rep. Elijah Cummings, ranking member of the committee agreed.

This prompted Issa’s staff to send a note to reporters with Connolly’s remarks asking, “If Committee Democrats are encouraging the Administration to decline all witnesses, how does obstruction advance legitimate government oversight?”

Better questions to ask might be: “If a committee’s chair is busy making politically-motivated rules changes, how much time is he actually spending on legitimate government oversight?” or “Do we really want to be giving government oversight power to a man who doesn’t believe in the basic democratic principle of the rights of political minorities?”

 

PFAW

Shameful!

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.

PFAW

Another View of the Judicial Vacancy Crisis

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

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

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

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

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

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

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

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

PFAW

In Overcrowded Courts, Justice Delayed

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.
 

PFAW

White House: Judicial Nominations are a Priority for Lame Duck

White House Press Secretary Robert Gibbs told reporters yesterday that pushing through stalled judicial nominations would be one of the president’s priorities in the last days of the lame duck session of Congress.

People For released a memo last week detailing why it’s important for the Senate to confirm all 38 stalled nominees immediately:

As the end of the 111th Congress approaches, 38 judicial nominees approved by the Senate Judiciary Committee are waiting for a vote on the Senate floor. Many of the nominees have been waiting for months, while a few have been waiting for almost a year.

Of these nominees:

  • 21 (55%) have been nominated to fill emergency slots.
  • 29(76%) are women or people of color.
  • 29 (76%) came out of committee without opposition and an additional 3 came out of committee with significant bipartisan support.

There’s no question that a majority of senators will vote to confirm every one of these nominees, and it’s unlikely that any of them would fail to garner the 60 votes necessary to overcome procedural hurdles that the GOP has deployed on virtually every function the Senate has performed since President Obama took office. (This is doubly true considering that many members of the GOP have publicly asserted that filibusters of judicial nominees aren’t just wrong, but actually unconstitutional.)

Now, Senate Minority Leader Mitch McConnell seems to be offering Democrats a devil’s bargain: confirm a number of the nominees that don’t have any opposition at all, but send the rest back to the White House at the end of the Congress. The group being sent back to the White House will almost certainly include four of the eminently qualified – and mainstream -- nominees who have had the misfortune of being tagged as “controversial” by Republicans:

  • Rhode Island nominee John McConnell, who has been opposed by the US Chamber of Commerce for his willingness to represent victims of lead paint poisoning.
  • Former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to prevent his reelection.
  • U.S. Magistrate Edward Chen, who has been attacked for his work fighting discrimination against Asian Americans for the American Civil Liberties Union.
  • And then, of course, Ninth Circuit Appeals Court nominee Goodwin Liu. As the New York Times editorial page has pointed out, the GOP’s resistance to Liu centers mainly around the fear that he’s so qualified, he might end up on the Supreme Court.

Senator Reid and his colleagues should call Senator McConnell’s bluff and start holding cloture votes on these nominees. The process will take time, but adding time to the calendar is entirely within the Democratic leadership’s purview. By confirming McConnell, Butler, Chen, and Liu, Senators can make clear that they will fight the unprecedented and enormously damaging obstruction of highly qualified judicial nominees. Walking away from these nominees delivers the confirmation process to the GOP: they’ll effectively block confirmable jurists without even having to go on record with their obstruction.

President Bush worked hard to pack the courts with far-right, Federalist Society judges. Confirming Obama’s picks will not only fill vacancies causing judicial emergencies and add much-needed diversity to the federal bench, it will prevent the federal bench from continuing to be dominated by Bush’s far-right appointments.

 

PFAW

GOP obstruction on the Defense bill is stopping more than DADT repeal

Yesterday, Majority Leader Reid gave a floor speech about the Senate’s lame duck agenda.

 

Mr. President, as far as lameduck sessions of the Senate go, our agenda is rather ambitious, and the session itself is relatively long. It did not have to be this way. We have tried many times this Congress to tackle each of the priorities on our agenda. Each time we have tried, the minority has tried to shut down the Senate. Republicans ground the Senate to a halt and forced endless hours of inactivity. That is why we were here voting on Sunday--on Saturday; I am sorry. Thank goodness it was not on Sunday. That is why we will still be here another few weeks.

We have a long to-do list. But these priorities are not mere leftovers. They are critical to our economy and our national security, to our families and our country's future, and we will resolve them before we adjourn.

[. . .]

Obstruction has consequences. None of the issues on this long list is new. Neither is the minority's effort to keep the Senate from working and keeping Senators from doing our jobs.

It is time to roll up our sleeves--not dig in our heels. My hope for the final weeks of this year is that Republicans finally will realize we all have much more to gain by working together than working against each other.

That got me thinking about Don't Ask, Don't Tell. Its repeal constitutes just 4 pages (203-207) of the 854-page FY11 Defense authorization bill. That means GOP obstruction is holding up a bill over just 0.47% of its text.

So what’s in the other 99.53%?

As Majority Leader Reid points out:

We are also going to repeal the discriminatory don't ask, don't tell rule. We are going to match our policy with our principles and finally say that in America everyone who steps up to serve our country should be welcomed.

Republicans know they do not have the votes to take this repeal out of the Defense authorization bill, so they are holding up the whole bill. But when they refuse to debate it, they also hold up a well-deserved raise for our troops, better health care for our troops and their families, equipment such as MRAP vehicles that keep our troops safe, and other critical wartime efforts in Afghanistan and counterterrorism efforts around the world.

We’ve been waiting 17 years for the repeal of Don't Ask, Don't Tell. But our troops are also waiting. The Senate must act posthaste on the FY11 Defense authorization bill. Take care of repeal. Take care of our troops. Take care of our nation’s defense.

Don’t let anyone tell you that neither the will nor the time are available. Show the Senate that they are. Click here to contact your Senators, and here for information about this Friday’s rally at the Capitol.

PFAW

Senate Majority Leader Harry Reid Files Cloture on DREAM Act

Because, thanks to the ongoing GOP obstruction in the Senate, virtually nothing can get done without a time consuming cloture vote, Senate Majority Leader Harry Reid filed cloture late yesterday on the motion to begin debate on the DREAM Act. If passed, the legislation would allow undocumented immigrants who were brought to the United States as children to gain legal status and a path to citizenship if they attend college or join the armed forces.

The Brookings Institution gives a rundown of what the legislation includes:

The Development, Relief and Education of Alien Minors (DREAM) Act would offer conditional citizenship to a specific group of young individuals. To gain conditional status under the DREAM Act one must have entered the United States before the age of 16, been in the country continuously for five years, earned a high school diploma (or GED) and not committed any crimes that would otherwise restrict someone from entering the country. During a six-year period of conditional status, this group will have been required to complete two years in uniformed service or two years enrolled at an institution of higher learning, and must pass a second criminal background check before being considered for full citizenship. It should also be noted that the DREAM Act only applies to young people currently in the country so that it will not encourage additional families to bring children to the U.S. looking for benefits.

The bill seems to have plenty of support. Orrin Hatch, Sam Brownback, Susan Collins and Olympia Snowe have all supported it in the past. But when it comes to Republican obstruction, good policy takes a backseat to good politics.

By filing the cloture petition, Reid will be able to hold the vote on cutting off debate and then proceeding to consideration of the bill on Wednesday. We’ll keep you posted as the issue moves forward.

PFAW

The Long Term Cost of GOP Obstruction

Usually when we talk about Republican obstruction, it’s to explain the immediate problems that need to be fixed, but can’t because Republican Senators won’t let the solutions come up for a vote—an understaffed Department of Justice, empty seats languishing on the federal judiciary, an impending budget deadline, etc.

Currently, for example, there are 34 judicial nominees pending on the Senate floor, the vast majority of which are to fill vacancies deemed “judicial emergencies.” 26 of those nominees have faced no Republican opposition; one received only one negative vote - but all of them are held up anyway, waiting endlessly to start their new jobs.

But perhaps the most damaging effect of this delay won’t become apparent for years. Delaying simple confirmation votes forces nominees to put their lives on hold for months or even years, for a job with longer hours and less pay than they could find elsewhere. The excruciatingly long confirmation process is making it harder and harder to recruit qualified candidates to fill critical government positions.

Already, some nominees have decided that they couldn’t, or didn’t want to, deal with the ugly process any longer.

Dawn Johnsen, President Obama’s pick to head the Office of Legal Counsel, eventually withdrew her name because Republican senators so politicized her nomination that they undermined her primary goal of depoliticizing the OLC itself. Mary Smith, nominated to head the Tax Division of the Justice Department, asked for her name to be withdrawn when she concluded GOP obstruction would drag on for months longer. And any number of judicial nominees have displayed borderline heroism by sitting by silently as their reputations are smeared by critics playing fast and loose with the truth.

After seeing the treatment that even exceedingly well qualified nominees receive from the Senate, should it be any surprise if well qualified individuals in the future just decide that they don’t want the trouble?

Of course, if you’re in the business of attacking the Obama Administration at all costs, maybe scaring off qualified government officials isn’t a problem, it’s the goal.

 

PFAW

Democrats Eschew Republican Example and Follow the Constitution

This week, Americans get to see the difference between a party that respects the rule of law and one that holds it in contempt.

Earlier this week, Senate Democrats got a food safety bill passed - then discovered a procedural problem with constitutional implications: One section of the Senate bill would raise revenue, but the Constitution requires revenue bills to originate in the House. Now, in the face of Republican obstruction, Democratic leaders are working to figure out how to get the bill passed correctly before time runs out.

While the headlines are on the mistake, the main focus really should be on how Democratic leaders are responding appropriately to it - in stark contrast to how Republican leaders dealt with a similar foul-up in February 2006, when they controlled Congress. GOP leaders sent a bill for the president's signature that they knew had not passed the House.

The Deficit Reduction Omnibus Reconciliation Act of 2005 squeaked through the Senate after Vice President Cheney cast the tie-breaking vote. But when the bill was transmitted to the House, in a mistake that no one noticed at the time, one of the numbers in the bill text was changed, changing the rights of Medicare recipients and creating a $2 billion difference between the two bills. The House passed its version with a bare two-vote margin. Then Republican leaders discovered that the two chambers had voted on different bills, meaning that a basic constitutional requirement had not been met.

Having a revote would have been politically difficult. So, faced with a choice between their partisan political agenda and the United States Constitution, GOP leaders chose ... politics. They sent the Senate version to the White House for President Bush's signature, with the Republican Speaker's false certification that it had passed both chambers.

As the Washington Post reported at the time:

Once the mistake was revealed, Republican leaders were loath to fight the battle again by having another vote, so White House officials simply deemed the Senate version to be the law. ...

The issue would be solved if the House voted again, this time on the version that passed the Senate. But that would mark the third time House members would have to cast their votes on a politically difficult bill, containing cuts in many popular programs, and it would be that much closer to the November election.

The way the two parties handled similar situations speaks volumes about their commitment to the Constitution and the rule of law.

PFAW

Republican Judges Against Republican Obstruction

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?

PFAW

People For and Progressive Groups Urge Senate to Break Confirmation Gridlock

This week, People For and 46 other progressive groups sent a letter to the leaders of the U.S. Senate urging them to end the backlog of judicial nominees before the end of this session of Congress. Republican obstruction has prevented dozens of nominees from even receiving a vote on the Senate floor, leaving the federal court system with over 100 vacancies and the slowing down the process of bringing more diversity to the federal bench. Read the full letter:

Dear Majority Leader Reid and Minority Leader McConnell:

The undersigned organizations strongly urge you to end the troubling backlog of judicial nominees that exists to date in the 111th Congress. The obstruction of many of President Obama’s nominees through filibuster threats and anonymous “holds” is hindering the important work of our judicial branch, particularly in the many areas of our nation that now face judicial emergencies due to unfilled vacancies on the bench.

Throughout the 111th Congress, President Obama has worked with the Senate on a bipartisan basis to select extraordinarily well-qualified judicial nominees who could easily be confirmed by wide margins and begin serving the public, if brought to a vote before the full Senate. Yet a troubling number of these nominees, many of whom have been cleared by the Committee on the Judiciary with little or no opposition, have been blocked from up-or-down confirmation votes for reasons that defy explanation. Indeed, many of President Obama’s judicial nominees who have been confirmed, to date, have been confirmed by unanimous votes – but only after languishing for many months on the Senate floor, raising significant doubts about the legitimacy of the ongoing delays in confirmation proceedings.

Due to arcane floor procedures that allow a single member to impede the important business of the Senate, our judicial branch has reached a state of crisis. Out of 872 federal judgeships, 106 are currently vacant, with 50 of those vacancies now characterized as “judicial emergencies” in which courts are being overwhelmed by filings that cannot be considered. As a result, a growing number of Americans, from all walks of life and across all economic strata, are finding it increasingly more difficult to assert their legal rights and to have their fair day in court.

In the meantime, the Senate is badly failing in its constitutionally-mandated role of considering the nominees that President Obama has selected. Prior to entering its pro forma session, the Senate failed to confirm any of the 23 nominees who are currently pending on the Senate floor, 17 of whom advanced through the committee process with no opposition whatsoever. Moreover, 11 of the pending nominees would fill seats designated as judicial emergencies – and more than half of the pending nominees are people of color, while 10 of them are women, who would bring badly-needed and long-overdue diversity to our judicial branch.

We write to you at a time when our nation faces numerous challenges that cry out for bipartisan cooperation, including major economic challenges and continued international threats. We strongly believe that the continued obstruction of nominations will poison the political atmosphere, needlessly heighten partisan tensions, and make it far more difficult for the federal government to serve the public interest in any respect. These consequences are all but certain to continue into the 112th Congress and beyond.

For these reasons, in the remaining weeks of the 111th Congress, we strongly urge you to work together in a bipartisan fashion to proceed with confirmation votes on the two dozen judicial nominees who remain pending on the Senate floor. Thank you for your consideration.

Sincerely,

AFL-CIO

Alliance for Justice

American-Arab Anti-Discrimination Committee

American Association for Affirmative Action

American Association of People with Disabilities

American Association of University Women

American Federation of Government Employees

American Federation of Teachers

Americans for Democratic Action

Asian & Pacific Islander American Health Forum

Asian American Justice Center

Common Cause

Constitutional Accountability Center

Equal Justice Society

Families USA Foundation

Feminist Majority

Hispanic National Bar Association

Hispanics for a Fair Judiciary

Human Rights Campaign

Japanese American Citizens League

Judge David L. Bazelon Center for Mental Health Law

Lambda Legal

Lawyers’ Committee for Civil Rights Under Law

The Leadership Conference on Civil and Human Rights

League of United Latin American Citizens

Legal Momentum

Mexican American Legal Defense and Educational Fund

NAACP

NAACP Legal Defense & Educational Fund, Inc.

National Asian Pacific American Bar Association

National Asian Pacific American Families Against Substance Abuse

National Asian Pacific American Women's Forum

National Association of Consumer Advocates

National Association of Human Rights Workers

National Association of Social Workers

National Black Justice Coalition

National Congress of Black Women, Inc.

National Council of Jewish Women

National Disability Rights Network

National Employment Lawyers Association

National Fair Housing Alliance

National Partnership for Women & Families

National Urban League

National Women’s Law Center

OCA

People For the American Way

Secular Coalition for America

SEIU

Sikh American Legal Defense and Education Fund

Sikh Coalition

 

PFAW

Former Bush Lawyer: Stop Partisan Bickering and Confirm Liu

The Blog of the Legal Times is reporting that Senate Majority Leader Harry Reid is planning to call Senate Republicans on their obstruction of judicial nominees and break the gridlock that has kept four of these nominees pending, in some cases for over a year. Reid will attempt to stop the Republican filibuster of Ninth Circuit nominees Goodwin Liu and Edward Chen, Rhode Island District Court nominee John McConnell, and Wisconsin District nominee Louis Butler. 

This is a critical moment for these nominees, who despite support from their home-state senators and endorsements across the ideological spectrum, have for various reasons been branded as “too extreme” by obstructionist Republicans in the Senate. McConnell has been up against an expensive lobbying campaign from the Chamber of Commerce, which objects to his work as a public interest lawyer representing victims of lead paint poisoning. Butler has been up against business interests who don’t think he was friendly enough to them when he was on the Wisconsin Supreme Court. Chen was accused by Jeff Sessions, the top Republican on the Senate Judiciary Committee of having an apparently disqualifying “ACLU chromosome.”

Liu’s nomination has been the subject of the most partisan squabbling. Liu’s main obstacle, it seems, has been his own brilliance: some on the Right worry that if he makes it on to the bench, he could eventually become a Supreme Court nominee. But Liu’s nomination is backed by legal luminaries from across the ideological spectrum, including former Bush White House lawyer Richard Painter, who today wrote another plea for the Senate GOP to break the judicial gridlock and at least take a vote on Liu’s nomination:

In any event, nominees who should not be controversial, including Goodwin Liu (I have made previous posts here on his nomination), are described as radical activists, the same tactic that advocacy groups deployed to mischaracterize many of President Bush’s nominees.

Public opinion of Members of Congress (both parties) these days is lower, far lower, than it was in the days when Senator Henry Cabot Lodge used just the right term to describe what he saw going on when Senators filibustered legislation. Those of us who care about the future of the judiciary should make it clear that the delay must stop.

This does not mean the Senators should vote "yes". They can vote "no". But they should vote.

Specific nominations aside, the federal judicial system in general has taken a drubbing under the Senate GOP’s refusal to confirm nominees. A new report from the Alliance for Justice has found that the number of vacancies in the federal judiciary has nearly doubled since President Obama took office, and that the number of open seats designated as “judicial emergencies” has risen from 20 to 50, affecting 30 states.

Confirmation votes will become much more difficult next year, with Democrats hanging on to a much slimmer majority in the Senate. Now’s the time to push through the nominees whom the GOP has been the most eager to obstruct.
 

PFAW

Tracking the Obstruction: Obama v. Bush

Last month I helped you decipher what progress does and doesn’t mean for executive branch nominations being considered in the Senate. I can now add that President Obama’s executive branch nominations are generally lagging behind President Bush’s when it comes to the Executive Calendar (list of all treaties and nominations that are ready to be taken up on the Senate floor).

On 11/12, the average age of Cabinet nominations ever placed on the Calendar was 34 days, and the average time spent on the Calendar was 10 days. That sounds pretty low, right? Well, it’s not when compared to President Bush’s rates at that same time – an average age of 12 days and an average time of 3 days. Even at the end of his Administration, President Bush was still way ahead of President Obama – an average age of 25 days and an average time of 7 days.

The same holds true for lower level nominations and when you count both Cabinet and lower level together – with one caveat.

On 11/12, the average age of lower level nominations ever placed on the Calendar was 103 days, and the average time spent on the Calendar was 36 days. For President Bush at that same time it was an average age of 68 days and an average time of 16 days. When you count both Cabinet and lower level together, President Obama’s average age was 102 days and the average time was 36 days, with President Bush at 66 days and 16 days at that same time.

The caveat: the numbers draw much closer or even level out by the time you get to the end of the Bush Administration. Where President Obama was at 103 days and 36 days for lower level nominations, President Bush finished out at 103 days and 30 days. Where President Obama was at 102 days and 36 days when you count both Cabinet and lower level together, President Bush finished out at 102 days and 29 days.

It might help to look at the charts from which these statistics were drawn. Please click here to go to our latest report on executive branch nominations. See the “Executive Calendar” section starting on page 3.

So why is there any holdup at all? Simple. Senate Republicans have thus far made the decision to do whatever they can to trip up President Obama, even if that means denying the country a fully-staffed government doing the best possible work. After all, who has time to actually govern when the next presidential election is just two years away?

PFAW