Obstruction

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

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