Federal judicial selection

  • March 5, 2012

    by Nicole Flatow

    A bipartisan duo of law professors emphasized the urgent need for judicial nominations reform in The New York Times this week.

    In a proposal featured in The Times’ “Sunday Dialogue,” the University of Minnesota’s Richard Painter and the University of North Carolina’s Michael Gerhardt lament the “judicial vacancy crisis on our federal courts,” and summarize the reform proposal laid out in their American Constitution Society Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform.”

    “President Obama has had a lower percentage of his judicial nominees confirmed by the Senate than any other recent president at this point in his term,” they write in The Times. "Filibusters, which have historically been used to block legislation and can be sustained by as few as 41 senators, are part of the problem." 

    Gerhardt and Painter point out that Obama, recognizing the severity of the obstruction problem, recently offered his own proposal for nominations reform: require up-or-down votes on all nominees within 90 days (this proposal was immediately endorsed by Senate Majority Leader Harry Reid).

    If the Senate adopted this proposal, it would necessarily eliminate much of the long-term obstruction contributing to the vacancy crisis. But, in the event that the Senate is looking for reform with a bit more wiggle room, Gerhardt and Painter have another option for the body to consider:

  • March 2, 2012
    On Monday, the Senate confirmed Margo Brodie to the U.S. District Court for the Eastern District of New York by a vote of 86-2, almost a year after her nomination. The Judiciary Committee approved her nomination unanimously in October.
     
    Senate Democrats took to the floor on Tuesday to express their exasperation over the continuing obstruction of judicial nominees who have broad bipartisan support. “We have a crisis on our third and independent branch of government and it is one that only we in the Senate can solve,” Sen. Charles Schumer (D-N.Y.) said. Others who made floor statements included Sens. Dick Durbin (D-Ill.), Patrick Leahy (D-Vt.), Chris Coons (D-Del.), Dianne Feinstein (D-Calif.), Tom Udall (D-N.M.), Amy Klobuchar (D-Minn.) and Ben Cardin (D-Md.). American Bar Association President Wm. T. (Bill) Robinson III also issued a statement this week saying, “Our federal court system -- indispensable to the nation’s economy and the justice and freedoms we cherish -- is being quietly undermined by needless deadlock.”
     
    The president put forth the names of two nominees to federal judgeships on Wednesday. He nominated Tulsa litigator John E. Dowdell to the U.S. District Court for the Northern District of Oklahoma and Judge Brian J. Davis to the U.S. District Court for the Middle District of Florida. Confirming Davis would fill a judicial emergency in the district. The same day, the Senate Judiciary Committee held a hearing for one of President Obama’s circuit court nominees and two of his district court nominees.
     
    The next day, the Judiciary Committee voted to approve the nomination of Andrew David Hurwitz to the U.S. Court of Appeals for the Ninth Circuit and postponed votes on four other judicial nominees.
     
    Currently, there are 43 pending nominees, with 20 waiting for floor votes (12 on whom moved from committee unanimously). Politico reports that Sen. Harry Reid (D-Nev.) “is privately warning Senate Minority Leader Mitch McConnell (R-Ky.) that he may take extraordinary steps to move a laundry list of stalled nominees if the two men can’t reach a deal soon.”
     
  • February 29, 2012

    by Nicole Flatow

    Adding to the calls this week from eight Senate Democrats to hold immediate up-or-down votes on the long-pending judicial nominees, American Bar Association President Wm. T. (Bill) Robinson III is urging ABA members to ratchet up the pressure on judicial nominations.

    “Washington’s partisan gridlock has stymied not just the policy process, but also the responsibility of the Senate to give advice and consent in the nomination process,” Robinson said. “Our federal court system —indispensable to the nation’s economy and the justice and freedoms we cherish — is being quietly undermined by needless deadlock.”

    A persistently high rate of judicial vacancies is not without consequence, he explains. It causes backlogs. And backlogs are “bad for business," "unfair to individuals," and slow "government enforcement actions, which ultimately costs taxpayers money.”

    In the Central District of Illinois, the chief judge, Jim Holderman, just recently sent a letter to Sen. Dick Durbin, imploring him to do everything in his power to move forward two controversial nominees in his district, considered a judicial emergency.

    “The Bottom Line,” said Durbin in his floor statement Tuesday, is that “judicial nominees with no controversy, widespread bipartisan approval, are being held up on the Senate calendar and not approved.”

    “It was not so long ago that liberals and conservatives could easily win confirmation as long as they were well qualified, fair-minded, and had judicial temperament,” said Sen. Dianne Feinstein in her floor statement. She continues:

    It may even surprise some that Justice Ruth Bader Ginsburg was confirmed by a vote of 96 to 3, and Justice Antonin Scalia was confirmed 98 to 0.  That was a different time. 

    Today partisanship has stalled even the most uncontroversial judicial appointments. Senate Republicans allowed no nominees to be confirmed at the end of the last session and have allowed only five so far this year. In this environment even those reported out of committee by voice vote without any controversy are unable to receive a floor vote for many months if they ever receive one at all. 

    She provides a recent example from her home state:

  • February 28, 2012

    by Nicole Flatow

    Senate Democrats took to the floor on Tuesday to express their exasperation over the continuing obstruction of judicial nominees who have broad bipartisan support.

    “We have a crisis on our third and independent branch of government and it is one that only we in the Senate can solve,” Sen. Charles Schumer said.

    The highlights from his statement and those of Sens. Dick Durbin [pictured], Patrick Leahy, Chris Coons and Dianne Feinstein are featured in a video montage.

    “The bottom line,” said Durbin. “Judicial nominees with no controversy, widespread bipartisan approval, are being held up on the Senate calendar and not approved.”

    Also speaking on the subject today were Sens. Tom Udall and Amy Klobuchar.

    Explained Klobuchar:

    There are many problems facing our country that do not have simple solutions. There are many problems for which the two parties have vastly different solutions. But in this case with judicial vacancies, there is only one solution, and it is well within our grasp given that so many of these judges were noncontroversial. Mr. President, this is the solution. It’s two words: Let’s vote.

    Watch the video montage here, and visit JudicialNominations.org to learn more and follow developments. 

  • February 24, 2012
    Just before the Senate went into its Presidents Day recess, Majority Leader Harry Reid (D-Nev.) announced that the chamber would take up the confirmation vote for Margo Kitsy Brodie to the U.S. District Court for the Eastern District of New York when they returned this coming Monday. The Senate Judiciary Committee unanimously approved her confirmation in October. Monday will mark the 265th day since her nominations.
     
    Before leaving the floor, Reid lamented the Republican obstruction of judicial nominations. Reid assured the Senate that the coming work period would focus on judges and continued, “We will have the fight on the judges ourselves because they are recommendations we make to the President. But these are the President's nominations and he should have the right to have these people working in his administration.” There are currently 21 confirmations waiting for a floor vote, 16 of which received unanimous committee support.