Federal judicial selection

  • April 24, 2012
    Guest Post

    By Adam Winkler, a constitutional law professor at UCLA School of Law

    The age of judicial activism - err, I mean "judicial engagement" - is upon us. Having realized that they don't always win with voters, leading conservatives are abandoning their traditional emphasis on judicial restraint and respect for the decisions of democratically elected officials. After years of berating liberal judges for overturning laws in the name of controversial constitutional principles, conservatives are now embracing the notion of an active, "engaged" judiciary. Only they want one that aggressively protects those rights conservatives prefer: property rights, rights of religious expression, the liberty of contract, the right not to buy broccoli - regardless of decades of established case law.

    For evidence of this trend, one need not look further than startling concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, who is often mentioned as a potential Supreme Court nominee in a Republican administration, used her opinion to audition for a leadership role in this new movement. The time has come, she wrote, to end the pernicious practice of allowing legislatures to regulate the economy. "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s." The proof? The "Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote the public welfare."

    Besides Brown’s Bizarro world premises in which things like consumer protection laws harm consumers, her ode to the Lochner era reminds us of the importance of judicial appointments. For decades, Republican presidents have used the lower federal courts as a farm team for the Supreme Court, smartly filling positions with potential stars to see how they perform. This is a smart strategy, though one Democrats haven’t followed. Instead, Democratic presidents have tended to name competent, diverse people who aren’t likely to be controversial. But in the current political climate, even these clear consensus nominees are held up in the Senate, leaving the federal courts with a critical number of vacancies and a troubling imbalance in our courts. To counter the newly “engaged” judicial conservatives like Brown, legal liberals need to be fighting for judges, particularly those judges with the intellectual fortitude to go toe-to-toe with the leading lights of conservative constitutionalism. Respect for our Constitution and settled precedent demands nothing less.

  • April 13, 2012
    The Senate is on recess this week, but that didn’t stop Sen. Dean Heller (R-Nev.) from continuing to obstruct a judicial nominee. Heller is refusing to return the required blue slip for Judge Elissa Cadish, nominated to the U.S. District Court for the District of Nevada. Cadish’s confirmation would fill one of the 34 judicial emergencies nationwide.
    After refusing to explain himself for weeks, Heller finally admitted last week that his opposition stems from his disagreement with her response to a question about the Second Amendment in a 2008 questionnaire. Although Cadish explained that she based her assessment of Second Amendment rights on the law at the time (before the U.S. Supreme Court decided District of Columbia v. Heller and McDonald v. City of Chicago), Heller has said he will not change his mind about her nomination, and Senate Majority Leader Harry Reid said he will not back down from defending Cadish and will not ask her to withdraw her nomination.
    In a column telling Heller he “blue-slipped up” in blocking Cadish’s nomination, Las Vegas Review-Journal columnist Jane Ann Morrison notes that Cadish was rated “unanimously qualified” by the American Bar Association and is “no borderline, unqualified or crackpot candidate, yet you've insulted her and tarnished her reputation by your actions.”
  • April 12, 2012
    Guest Post

    By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment. Sugameli founded in 2001 and still heads the environmental community's Judging the Environment project and website on federal judicial nominations and related issues.

    Justice delayed continues to be justice denied, as unjustifiable Senate obstruction of federal judicial nominees delays resolution of urgent health, safety, environmental, and other cases.

    In the latest example, Nevada GOP Senator Dean Heller’s misunderstanding of the Supreme Court’s coincidentally-named D.C. v. Heller decision has led him to block a Judiciary Committee hearing on a pending nominee.

    My December 2008 ACSblog guest post discussed the need to fill the then-existing 44 empty federal judgeships. Since then, the vacancy crisis has worsened. March 27, 2012 marked the 1,000th consecutive day with 80 or more current vacancies. Today there are 81 current vacancies, and with 18 announced future vacancies, there are 99 seats to fill. My September 2011 guest post described how U.S. Courts declared "judicial emergency" vacancies had increased during President Obama’s term from 20 to 35; now there are 34.

    To fill one of these judicial emergencies, President Obama selected Clark County District Court Judge Elissa Cadish for a District of Nevada seat. In 2007, Cadish was appointed to replace a retired state judge. She was elected in 2008 with strong support from the Editorial Boards of the Las Vegas Sun, and of the Las Vegas Review Journal, which stated: “In her knowledge of the law, in her intellectual firepower and judicial demeanor, Elissa Cadish was a superlative appointment who voters can proudly retain.” For the federal district court, the American Bar Association rated Cadish unanimously Qualified.

    The vast majority of Republican senators have strongly supported President Obama’s judicial nominees from their state. This even includes freshmen Republican senators who helped to confirm 10 nominees for judgeships whom Obama re-submitted after the senators were elected.

    Sen. Heller, however, has refused to sign the home-state senator “blue slip” that is needed for Judge Cadish’s Committee hearing. Moreover, he would only be willing to hold a pointless meeting with her “to tell her why I don't support her nomination."

    The Las Vegas Sun editorial “Preventing Justice” explained:

  • March 30, 2012

    The Senate this week confirmed two district court nominees to fill emergency vacancies: Miranda Du to the District of Nevada, and Susie Morgan to the Eastern District of Louisiana. These two nominees are part of the 14 whom Senate leaders agreed to vote on as part of their deal last month. As Judiciary Committee Chairman Patrick Leahy (D-Vt.) notes, “Both nominations have the bipartisan support of their home state Senators, and were reported by the Judiciary Committee over four months ago. The Senate is still only considering judicial nominations that could and should have been confirmed last year. The judicial vacancy rate remains nearly twice what it was at this point in the first term of President George W. Bush.”

    In addition, the Senate Judiciary Committee approved three judicial nominees, including one circuit and two district court nominees, and held over the nominations of another circuit and four additional district court nominees.

    The committee also held a hearing on three district court nominees. Sen. Mike Lee (R-Utah) signaled his support for home-state nominee Robert Shelby, even though he has voted against every judicial and executive nominee so far this year in retaliation against President Obama’s recess appointments.

    Furthering the obstruction of judicial nominees, Sen. Mitch McConnell (R-Ky.) objected to the request to consider Donna Mary Murphy to be an Associate Judge for the Superior Court of the District of Columbia. The president nominates many D.C. judges because the District of Columbia is not a state.

  • March 30, 2012
    Guest Post

    By Eric M. Gutiérrez, Legislative & Public Policy Director for the National Employment Lawyers Association

    President Obama routinely gets high marks for his efforts to diversify the federal judiciary by nominating “non-traditional” candidates for federal judgeships. In fact, nearly three of every four nominees confirmed to the federal bench during his Administration are either women or minorities; he also is the first president who hasn’t selected a majority of white males for lifetime judgeships.

    Articles and commentary addressing judicial diversity, however, have focused typically on racial, ethnic, and gender diversity. The National Employment Lawyers Association (NELA) recently published a report entitled, “Judicial Hostility To Workers’ Rights: The Case For Professional Diversity On The Federal Bench,” which targets another type of diversity that is equally as important and sorely lacking on the federal bench — professional diversity. Like his predecessors, President Obama’s nominees have largely been corporate lawyers, judges, or prosecutors prior to their nominations, while fewer have been public defenders, legal services attorneys, or public interest lawyers. Even fewer have devoted their professional careers to representing workers and civil rights litigants.

    Overlooking qualified candidates whose professional experience includes representing workers in employment, labor, and civil rights cases inevitably reinforces the image of a judiciary that is unfamiliar with, and therefore indifferent to, the plight of everyday Americans. Moreover, as the NELA report points out, the lack of professional diversity has contributed to the increasing judicial hostility workers face in employment cases and the deleterious effect on workers’ access to the courts to vindicate their rights.

    Justice Byron R. White remarked on the value of Thurgood Marshall’s professional diversity: