In an interview with “60 Minutes” this weekend, Supreme Court Justice Sonia Sotomayor gave one of the best debunkings I’ve seen of the Right's line that a judge should be no more than an umpire, exercising no independent judgment and facing no difficult questions. Using the politically neutral example of the 3rd Amendment, Sotomayor explains how even the most seemingly clear-cut parts of the Constitution still require interpretation by judges and Justices:
Chief Justice John Roberts made headlines when, in his confirmation hearings, he said that a judge’s job was merely to call “balls and strikes.” The comforting words of his analogy hide the fact that most of the issues the Supreme Court approaches are complex and require human judgment – that’s why they reach the Supreme Court in the first place. They also conveniently obscure the fact that the conservative bloc on the Court is plenty influenced by their own ideology – there are plenty of examples here.
Justice Elena Kagan, in her confirmation hearings, gave another great rebuke to Roberts’ flawed baseball analogy. “We know that not every case is decided 9-0,” she said, “and we know that’s not because anybody’s acting in bad faith. It’s because reasonable people can reasonably disagree sometimes. So in that sense, the law does require a kind of judgment, a kind of wisdom. “
The New York Times’ Linda Greenhouse has a great blog post up on the National Rifle Association’s little-known role in influencing Senate votes on federal judicial nominees. Greenhouse focuses on the NRA’s effort to scare Republican Senators away from voting for the Supreme Court nominations of Sonia Sotomayor and Elena Kagan – neither of whom had any actual Second Amendment record – and its successful effort to frustrate the DC Circuit nomination of Caitlin Halligan, who had once represented the state of New York in a gun control case.
These are the most prominent examples of the NRA’s efforts to keep qualified judicial nominees off the federal bench without reason. But there are plenty more examples out there. One of the most appalling is that of Elissa Cadish, who President Obama nominated to fill a district court seat in Nevada back in February. The NRA immediately got to work to stop Cadish’s nomination. Why? One month before the Supreme Court’s Heller decision – in which it overturned decades of case law to state that the Second Amendment guarantees an individual’s right to own firearms – Cadish correctly answered a questionnaire about the current state of Second Amendment law. At the time, Cadish correctly stated that the law that she would follow as a district court judge did not include the individual right to bear firearms. After Heller, she clarified that she would of course follow current law, which now did include this right.
This was a sign of proper judicial restraint – district court judges are in the business of applying the law as interpreted by higher courts – but to the NRA it was an excuse to bring down a judicial nominee. The gun group strong-armed Nevada Sen. Dean Heller into opposing the nomination and that was that. Heller refused to give his permission for the Senate Judiciary Committee to even hold a hearing on Cadish (permission is traditionally required from both home-state senators), and her nomination foundered.
The NRA didn’t get involved with these judicial nominations because it had substantive reasons to oppose the nominees. It got involved because it is, in effect, a codependent wing of the Republican party. Greenhouse points out that it was Senate Republican Leader Mitch McConnell who reached out to the NRA about opposing Sotomayor, rather than the other way around. Senate Republicans want to stop President Obama from filling seats on the federal courts. They then used the NRA as a useful bludgeon to keep in line senators who might consider being reasonable. The NRA and the Republican leadership get what they want from this relationship. The rest of us get a gridlocked Senate, a vacancy crisis in the federal courts and nation awash in firearms.
Please take a moment to watch this end-of-the-year thank you message for you and all of PFAW's wonderful supporters around the world from PFAW founder Norman Lear:
On Friday, the Supreme Court agreed to hear two landmark cases on marriage equality. Yesterday, Justice Antonin Scalia reminded us again why gay rights advocates, to put it mildly, aren’t counting on his vote.
Scalia is the Supreme Court’s most outspoken opponent of gay rights. He led the dissent to the two major gay rights decisions of his tenure on the Court, the decisions to strike down Texas’ criminal sodomy law and to overturn Colorado’s ban on local anti-discrimination measures. And in his spare time, he minces no words about his uncompromising opposition to gay rights. Here are seven of his most egregious anti-gay statements:
This morning, the Senate Judiciary Committee approved five nominees to serve on federal district courts in New York, California and Florida and on the US Court of International Trade. A week ago, Iowa Republican Sen. Chuck Grassley postponed votes on all five nominations without giving a reason, a delaying tactic that he has used on 97 percent of President Obama’s judicial nominees who the committee has voted on.
Sen. Grassley did not explain the reason for the delay last week, when a coalition of Iowa and national groups urged him to stop such routine delays. And the reason remained unclear today, as all five nominees were approved without opposition.
These five nominees now join fifteen other federal judicial nominees awaiting confirmation votes from the full Senate. The Senate has made progress by scheduling confirmation votes on four unopposed district court nominees in the past week, but that small amount of progress isn’t nearly enough to fill the gaps in overworked federal courts. Seven of the nominees still waiting for votes would fill officially-designated “judicial emergencies.”
It would be easy, of course, for the Senate to hold votes on all of the remaining nominees before the end of the year. After all, most were approved by the Judiciary Committee many months ago. But Senate Republicans have continued to stall even nominees with strong bipartisan support. All the circuit court nominees waiting for votes have the support of their home-state senators, Republican and Democratic, and nearly all of the pending district court nominees were approved by the Judiciary Committee with unanimous or nearly unanimous bipartisan support. One circuit court nominee, New Jersey’s Patty Shwartz, has been waiting nine months just for an up-or-down vote from the Senate; Federal Circuit nominee Richard Taranto has also been waiting since March.
If the Senate fails to vote on these nominees during the lame duck, the confirmation process – from presidential nomination through floor vote – will have to start all over again next year.
Notable about the district court nominees approved by the Judiciary Committee today is that all are women or people of color, representative of President Obama’s efforts to bring diversity to the federal courts. The nominees also include New York’s Pamela Chen, who would become just the fifth openly gay person to be confirmed to a lifetime federal judgeship.
President Obama will end his second term with more vacancies on the federal courts than there were when he started. Today there are 99 vacancies on the federal circuit and district courts, 33 of which are for courts that are so busy that they’ve been officially designated “judicial emergencies.” This glut of vacancies is in large part due to Senate Republicans’ persistent obstruction of the president’s nominees – even the ones from their own states who they purportedly support. During President Obama’s first term, judicial nominees have had to wait on average three times as long after committee approval for a vote from the full Senate as did nominees in President George W. Bush’s first term.
But some vacancies are due to a less well-known but all too common delay at the very start of the nominations process.
Before he makes a nomination to the federal judiciary, President Obama asks senators from the state where the vacancy has occurred to present him with recommendations. It’s a way to identify nominees from any given state and to ensure home-state, often bipartisan, support for nominees. The problem is, senators from both parties have too often dragged their feet in recommending acceptable nominees, leading to often years-long vacancies in the federal courts.
These vacancies exist despite the fact that most federal judges give months, sometimes even a full year of notice before retiring or taking senior status (semi-retirement) so that a replacement can be found.
This week, senators from Colorado and New Mexico showed how the process is meant to work – and how it would work, if all senators followed their lead.
In Colorado, district court judge Wiley Daniel announced last winter that he would be leaving his seat in January 2013. Colorado senators Mark Udall and Michael Bennet set up a bipartisan commission to find qualified nominees for the seat in a timely manner. They then recommended a set of finalists to the White House, which in turn nominated Raymond P. Moore on Tuesday, before the seat he would fill becomes vacant. Of the 18 future vacancies currently listed by the Administrative Office of U.S. Courts, Colorado is one of only two states with a nominee.
In New Mexico, Judge Bruce Black announced in June that he would be leaving the court in October, just a few short months. So New Mexico’s senators, Tom Udall and Jeff Bingaman, announced their bipartisan commission that very day, leading to the president’s nomination yesterday of Kenneth John Gonzales to fill the vacancy.
There is no excuse for seats on the federal courts to be left open for years, as caseloads multiply and litigants face delays. The senators from Colorado and New Mexico showed how the front end of the judicial nominations process can be efficient and fair.