Obstruction

Ornstein: Senate GOP Causing "Damage to the Vital Interests of the United States"

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.

PFAW

With Nominations, the Senate GOP Legislates by Gridlock

This piece originally appeared in the Huffington Post.

The Senate GOP under President Obama has mastered the art of proactive apathy. Not content with neglecting their own jobs, Senate Republicans have expertly used their own dysfunction to prevent other parts of government from doing theirs. These efforts have consequences far beyond bureaucratic procedure: whether it's by crippling the courts or attacking agencies that hold corporations accountable, Republicans are making it harder for individual Americans to access the rights that a functioning government protects.

This week, Senate Republicans added two new public disservices to their resume. On Tuesday, they shattered the 2005 "Gang of 14" deal that prevented filibusters of judicial nominees in all but extraordinary circumstances, setting a standard that no nominee for the D.C. Circuit will be able to meet. As President Obama said about the filibuster of Halligan's nomination, "The only extraordinary things about Ms. Halligan are her qualifications and her intellect." And then on Thursday, they blocked President Obama's nominee to head a new federal agency simply because they do not want that agency to exist -- a move that will have untold consequences on future attempts to staff the executive branch.

These political power plays by a minority of senators are far more than "inside the Beltway" procedural dust ups. They signal the emergence of a party that is so intent on tilting the playing field in favor of the powerful that they will sacrifice basic public service in order to serve the interests of a powerful few.

On Tuesday, all but one Senate Republican refused to allow an up-or-down confirmation vote on Caitlin Halligan, a D.C. Circuit Court nominee who in any other year would have been easily approved by the Senate. The GOP struggled to find a reason to oppose Halligan on her merits, ultimately settling on a handful of trumped-up charges and the ridiculous argument that the D.C. Circuit, with one third of its seats vacant, didn't need another judge. When George W. Bush was president, many of these same Republicans loudly proclaimed that filibustering judicial nominees violates the United States Constitution, ultimately agreeing to the "Gang of 14" deal that judicial nominees would only be filibustered under "extraordinary circumstances." The vote on Halligan shattered that deal, opening the door for further political abuse of the judicial confirmation process.

On Thursday, the story repeated itself when the GOP succeeded in blocking a vote to confirm Richard Cordray to lead the newly created Consumer Financial Protection Bureau. Cordray, the former attorney general of Ohio, is as non-controversial as they come. He has a history of working with banks and with consumer advocates. He's backed by a bipartisan coalition of attorneys general, including the Republican who beat him in last year's election. Republicans in the Senate don't have any problems with Cordray. But they've made it very clear that they'll do everything in their power to keep the Consumer Financial Protection Bureau from performing the functions that it is required by law to carry out. They don't want anyone to lead the agency, because without a Senate-confirmed head, it cannot perform all of its legally assigned duties. This is not conjecture on the part of progressives; Republicans have brazenly admitted it.

Unfortunately, these votes are not aberrations. They are part of a clear pattern of the Senate GOP since President Obama's election. Unable to accept the results of an election they lost, and unable to get their own way on everything, they have resorted to obstruction and dysfunction. They have abused the extraordinary power the Senate minority is granted , blocking everything they get their hands on, sometimes, it seem, simply because they can. In the process, they are damaging America's system of justice and accountability and betraying the voters they were elected to serve.

Perhaps they are doing this to serve the powerful corporate special interests that do not want courts and agencies to hold them accountable, or perhaps they are doing it to score political points against a Democratic president, or some combination of those reasons. Ultimately, it doesn't matter. Either way, they are abusing their positions and throwing sand in the gears of the Senate to make it harder for ordinary Americans to get our day in court and to defend ourselves against the powerful. It's a deeply cynical strategy, and ultimately a deeply harmful one.

PFAW

GOP Disinformation Campaign on Filibustering Judges

Apparently recognizing the severe and possibly permanent damage they did to the judicial nominations process – and the entire U.S. court system – by filibustering Caitlin Halligan, Senate Republicans are running to the press to do damage control. Two days after they blocked consideration of a highly qualified, mainstream appeals court nominee for purely political reasons, they are claiming that they did nothing of the sort. Still covered in soot from the bomb they set off, they are painting themselves as peace-loving senators treating their Democratic colleagues respectfully.

In what might be mistaken for an April Fool's Day article, Roll Call has a piece trumpeting the GOP's claim that they are following the "golden rule" on judicial nominations, treating nominees supported by Democrats with as much respect as they would want theirs to be treated.

Graham and other Senate Republicans said they expect more of Obama's judicial nominees to be approved by the Senate next year, as long as the nominees' views are within the mainstream and they are properly vetted.

Then why have the Senate Republicans continued to slow-walk every nomination that comes before them? Even those with no opposition at all are forced to wait for months before the GOP allows them a floor vote. The contrast with how quickly President Bush's committee-approved nominees were given a floor vote is shocking. An average 22-day wait for President Bush's district court nominees has ballooned to 90 for President Obama. For circuit courts, Senate Republicans have forced the average wait from 30 days (for Bush) to 137 (for Obama).

The Senate has, for the most part, continued to adhere to the [2005 Gang of 14] agreement. Only two judges have been filibustered since 2005: Goodwin Liu and Halligan ...

Adhering "for the most part" is a cynical attempt to put a positive spin on "not adhering." The filibusters of Liu and Halligan were in clear violation of the agreement. And it's not "the Senate" that has violated the agreement, it's Senate Republicans.

The article conveniently overlooks the aggressive Republican effort to filibuster district court nominee Jack McConnell earlier this year, an effort that garnered the support of the majority of the Republican caucus. It also overlooks the fact that Democrats have had to file cloture on seven of Obama's judicial nominees in order to break through GOP obstruction. That some of those were ultimately confirmed overwhelmingly, sometimes even without any opposition, shows the cynical nature of the Republicans' misconduct.

But there are even more Republican filibusters than that. As a 2011 Congressional Research Service report states, "Cloture may be sought when no filibuster is taking place, and filibusters may occur without cloture being sought." Democratic leadership has sought to bring dozens of qualified, unopposed nominees to the floor in a timely manner, only to have them blocked for months by Republican leadership's refusal to agree. Just because Majority Leader Reid has not filed a cloture petition on them does not mean that they are not being filibustered.

Currently, there are 21 judicial nominations pending on the floor, 19 of them with overwhelming bipartisan support. There is no reason not to vote on them. If Republicans want people to do anything other than laugh at articles like this, they should end their filibusters and allow votes on them all.

Sen. Mike Lee (R-Utah) also said the Halligan vote was no watershed. Lee said the GOP treads lightly when it comes to filibustering judicial nominations, in part, for fear of antagonizing Democrats in the event that Republicans win the majority.

"We don't want to abuse [the filibuster of judicial nominees] because abusing it is wrong," Lee said. "But also there are consequences attached to abusing it and that is [another reason] why we are not abusing it."

"Abuse" is exactly the right word to describe the ongoing Republican obstruction of judicial nominees. Saying that black is white does not make it so.

PFAW

An Extraordinary Vote Shatters Senate Deal on ‘Extraordinary Circumstances’

The Senate GOP has already made it more difficult than ever for qualified judicial nominees to make it through the confirmation process. Yesterday, they made it even harder.

Caitlin Halligan, President Obama’s nominee to fill the seat on the D.C. Circuit Court of Appeals that Chief Justice John Roberts vacated when he was appointed to the Supreme Court six years ago, is widely regarded as well-qualified and moderate. She has the support of a large and bipartisan group of prominent attorneys and law enforcement officials. Her legal views are decidedly non-controversial and middle of the road.

Yet Halligan yesterday became another victim of the Senate GOP’s strategy to defeat the Obama administration by preventing anything at all from getting done. When Democrats tried to get her a simple up-or-down confirmation vote, all but one Republican voted to keep up the filibuster against her. Why? Because, they said, the D.C. Circuit could keep on functioning with one third of its seats empty.

Andrew Cohen at The Atlantic summed up the implications:

If it were possible to strip the political varnish from the judicial nomination process, if we reduced the dark art down to its elemental tones, what we would see is both simple and maddening. 1) Our nation doesn't have enough federal judges working on cases. 2) The result is a growing backlog in the administration of justice that impacts the lives of millions of Americans. 3) There is a limited supply of capable, honest lawyers who are willing to take a pay cut, not to mention endure the background checks, to work as life-tenured jurists. 4) The Senate is unwilling to confirm dozens of these dedicated people out of partisan spite.

The Senate GOP’s ongoing efforts to keep the judiciary from functioning properly are both a powerful deterrent to talented lawyers who are recruited for the bench, and set a dangerous precedent for future Senate confirmation battles.

In 2005, the Senate’s “Gang of 14” cut a deal agreeing to only filibuster judicial nominees under “extraordinary circumstances,” which Sen. Lindsey Graham defined as “a character problem, an ethics problem, some allegation about the qualifications of the person, not an ideological bent.” Republican senators lined up to bash judicial filibusters, some even calling them unconstitutional,  and expound on the importance of a functioning judiciary. Many of these, including Graham, have apparently changed their minds.

The filibuster of Halligan clearly shatters this deal. The desire to keep President Obama’s nominees off the bench is in itself not an “extraordinary circumstance.” The new standard for judicial filibusters the Senate GOP set yesterday is one that will hurt qualified nominees of this president and of the next president, whatever his or her party.
 

PFAW

Senate Schedules Cloture Vote for Caitlin Halligan

Senate Majority Leader Harry Reid has scheduled a cloture vote for Tuesday at noon on Caitlin Halligan's nomination to the DC Circuit Court of Appeals. Hopefully, that means the Senate will be able to finally cast an up-or-down vote on an exceptional nominee who was approved by the Judiciary Committee almost nine months ago.

Judiciary Committee Chairman Patrick Leahy released a statement this morning on what it means that Senate Republicans would even consider filibustering someone like Caitlin Halligan:

Republicans' shifting standards with respect to judicial nominations have required cloture motions to be filed on some nominations that ultimately won unanimous support from the Senate. Those shifting standards even required cloture to be filed on a district court nomination earlier this year. It would set yet another new standard if a nominee this well-qualified is prevented from even having an up-or-down vote, and one that could not be met by judicial nominees of Presidents of either party.

Indeed, Halligan's exceptional qualifications and broad-based, bipartisan support cannot be denied:

  • She has received the highest possible rating of her qualifications from a unanimous panel of the ABA's nonpartisan Standing Committee on the Federal Judiciary.
  • She served as New York's State's solicitor general for nearly six years.
  • She has a broad range of professional experience in government service, private practice, and academia.
  • She has received the strong support of a bipartisan group of America's most renowned appellate advocates, including Miguel Estrada (Assistant to the Solicitor General under President George W. Bush and former nominee to this same court), Seth Waxman (Solicitor General under President Clinton), Carter Phillips (Assistant to the Solicitor General under President Reagan), and Walter Dellinger (Solicitor General under President Clinton).
  • She has been endorsed by women's professional organizations like the National Center for Women and Policing, the National Conference of Women's Bar Associations, the Women's Bar Association of the District of Columbia, and the U.S. Women's Chamber of Commerce.
  • She has the support of law enforcement organizations like the National District Attorneys Association, the New York Association of Chiefs of Police, the New York State Sheriff's Association, and New York Women in Law Enforcement.
  • She has been endorsed by top law enforcement officials in her home state like Raymond Kelly (New York City Police Commissioner) and Robert Morgenthau (former New York County District Attorney).
  • She was awarded the National Association of Attorneys General “Best Brief” award five consecutive years.

Clearly, Caitlin Halligan is supremely qualified, mainstream, and uncontroversial. The need for a cloture vote shows how far Senate Republicans have moved the goalposts since claiming during the Bush Administration that the Constitution actually prohibits the filibustering of judicial nominees. It is hard to imagine what "extraordinary circumstances" – the standard set by the "Gang of Fourteen" in 2005 – would possibly warrant a filibuster in this case.

Chairman Leahy is right to mention that a new standard would be created if a DC Circuit Court nominee with such sterling qualifications and bipartisan support cannot even get an up-or-down vote on the Senate floor. What nominee could possibly meet this new standard? Should Halligan be filibustered, then it seems unlikely that any vacancy on that court could ever get filled. Considering that three of the eleven seats on the DC Circuit are vacant (this one for more than six years), that would deal a crippling blow to what many consider to be the nation's second most important court.

When the cloture vote on Halligan is held this Tuesday, let's hope cooler heads prevail. And let's hope that by Wednesday, we'll be calling her Judge Caitlin Halligan.

PFAW

In Tight Race with Elizabeth Warren, Scott Brown Bucks Party to Endorse Cordray for Consumer Financial Protection Bureau

Last month, PFAW’s Marge Baker wrote an op-ed for The Hill suggesting a simple way that Congress can respond to the energy behind Occupy Wall Street: by finally confirming Richard Cordray to head the long-languishing Consumer Financial Protection Bureau. Marge wrote:

Thanks to Republican obstructionism, the CFPB, tasked with holding big banks accountable to American consumers, has been without a leader since it was created by the Dodd-Frank Act last year. Elizabeth Warren, who conceived of the agency and oversaw its creation, would have been the natural fit to lead it, but her unapologetic work holding financial institutions accountable put her on the bad side of Congress’s GOP leadership.


In July, President Obama nominated former Ohio attorney general Richard Cordray to head the agency. Cordray is a strong defender of consumers who has also earned respect from the banks he worked with in Ohio. Last week, a bipartisan group of 37 state attorney generals wrote to Congress urging his confirmation. Even Ohio’s Republican attorney general Mike DeWine, a former U.S. senator who defeated Cordray in last year’s election, has endorsed him for the job. He is a well-respected, reasonable and eminently qualified choice to lead the agency.

Cordray’s nomination would be a shoe-in if it weren’t for one thing: Republicans in Congress don’t want the Consumer Financial Protection Bureau to exist at all. Unable to stop its creation, they have turned their energies to starving it. In May, 44 Republican senators sent a letter to the president saying that they would not confirm any nominee to head the CFPB unless the agency was first substantially weakened. Without a confirmed leader, the agency can’t fully start the work that it was designed to do.


While the agency is already overseeing credit companies and big banks, it can’t have its full oversight over mortgage companies and payday lenders until a head is confirmed. This situation is perfectly satisfactory to big lenders and the GOP leadership – but it’s bad for American consumers.


There is now one notable exception to the Republican blockade of Cordray’s nomination. Massachusetts Sen. Scott Brown, who is running against CFPB architect Elizabeth Warren in what will likely be a tough reelection race, has urged his fellow GOP senators to break their filibuster of Cordray’s nomination.

Brown’s in a more precarious political position than many of his Republican colleagues, but his endorsement of Cordray is telling. Recent polls have shown that Americans are concerned about the nation’s increasing income inequality and want tougher government regulation of Wall Street. The big banks may not want the Consumer Financial Protection Bureau to get up and running, but American consumers are eager for the protections that the bureau would provide. Sen. Brown has done the right thing by bucking his party to support Cordray – but by doing so he’s also acknowledging the tough spot that opponents of financial sector accountability may find themselves in in 2012.
 

PFAW

Leahy Notes Consequences of GOP Obstruction of Judges

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.

PFAW

You Have the Right to Sue, But ...

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.

PFAW

No Dent in the Nominations Backlog

November appears to be another month of Republican obstruction of qualified mainstream judicial nominees. So far this month, despite the substantial backlog of pending nominations, the Senate has voted to confirm only three judges. In the same period of time, the Senate Judiciary Committee has forwarded five qualified nominees to the floor, and more are on the way.

The backlog on the floor is growing due to the needlessly slow confirmation rate.

There are currently 24 qualified nominees waiting for a floor vote, 20 of whom received no opposition at all in committee. Many of the consensus nominees have been waiting for a vote since the summer. Eight of the pending nominees are judicial emergencies.

Without judges, the judicial branch cannot function, and the American people's access to justice is delayed or even denied. There are 102 total vacancies, 31 of which are judicial emergencies.

Yet Senate Republicans refuse to consent to timely floor votes on consensus nominees, even when they are strongly supported by their home-state Republican senators. Judiciary Committee Chairman Patrick Leahy spoke out against the obstruction on the Senate floor yesterday:

During President Bush's first 4 years, the Senate confirmed a total of 205 Federal circuit and district court judges. As of today, we would need another 90 confirmations over the next 12 months to match that total. That means a faster confirmation rate for the next 12 months than in any 12 months of the Obama administration to date. That would require Senate Republicans to abandon their delaying tactics.

Yesterday, voters in various parts of the country demonstrated that they want their elected officials to work for, not against, the American people. Ending the sabotage of the judicial branch of the United States government would be one way to show that Republicans are listening.

PFAW

Republican-Appointed Former Judge: Speed Up Judicial Confirmations

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

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

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

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

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

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

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

PFAW

Justice Ginsburg Mourns Breakdown of Judicial Nominations Process

At a speech yesterday at Southern Methodist University, Justice Ruth Bader Ginsburg touched upon the depressing state of our nation's judicial nominations process. As reported by the Associated Press:

U.S. Supreme Court Justice Ruth Bader Ginsburg said Monday that the confirmation process has become much more partisan and that she probably never would have made it to the high court under the current climate.

"I wish we could wave a magic wand and go back to the days when the process was bipartisan," Ginsburg told the crowd of about 2,000 as she spoke as part of a lecture series for Southern Methodist University's Dedman School of Law.

While most of us cannot wave such a magic wand, Senate Minority Leader Mitch McConnell can. With one word he could stop many of the GOP obstruction tactics against President Obama's judicial nominees. It was just such obstruction that prevented the Senate from voting to confirm twenty pending nominees before it left town several weeks ago, 17 of whom got through committee with no recorded opposition.

As ThinkProgress reported, Justice Ginsburg also noted the hostility felt by some senators toward the ACLU: "Today, my ACLU connection would probably disqualify me."

Unfortunately, she may be right. Late last year, Senator Jeff Sessions – then the Ranking Republican on the Senate Judiciary Committee – railed against judicial nominees who had worked with or been a member of the ACLU, specifically targeting William Martinez, Edward Chen, Goodwin Liu, Jack McConnell, Amy Totenberg, Robert Wilkins, and Michael Simon. He concluded his tirade with the following warning to President Obama:

I do believe the administration needs to understand that this is going to be a more contentious matter if we keep seeing the ACLU chromosome as part of this process.

Republican hostility to the ACLU – and to the constitutional rights it regularly protects – is extremely disturbing. At the same time, the blocking of even unopposed nominees suggests that the GOP's main problems with President Obama's nominees is that they are President Obama's nominees.

PFAW

Ongoing Focus on GOP Obstruction of Judicial Nominations

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

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

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

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

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

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

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

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

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

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

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

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


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


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


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


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


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


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

PFAW

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