Judicial Nominations

  • October 14, 2016
    Guest Post

    by Jeff Mandell, Senior Associate at Stafford Rosenbaum LLP in Madison, Wisconsin. Jeff is also the Chair of the newly formed ACS Madison Lawyer Chapter.

    Earlier this week, Sen. Tammy Baldwin (D-Wis.) keynoted the ACS Madison Lawyer Chapter’s kick-off event. In spirited remarks and thoughtful answers to audience questions, Sen. Baldwin spoke powerfully about the stalled nomination of Chief Judge Merrick Garland to the Supreme Court, the judicial vacancy crisis more broadly and the vital need for our country to move forward: “Leaving one seat vacant prevents our highest court from resolving major legal issues. It threatens the integrity of our democracy and the functioning of our constitutional government. It puts at risk the administration of justice across the country. As Justice Kagan said recently, ‘A tie does nobody any good.’ We need nine.”

    Sen. Baldwin gave historical context for the current moment, noting “this year will mark the first time since 1864 that the Supreme Court has been without its full complement of Justices on Election Day next month.” She also expressed her disappointment and exasperation at the Senate Republican majority’s refusal to consider—or even hold a Judiciary Committee hearing on—Chief Judge Garland’s nomination. She described the obstruction as “wrong and deeply irresponsible, as well as “disrespectful to our Constitution, disrespectful to our president, disrespectful to this very qualified nominee and disrespectful to the American people.”

    She also addressed the vacant seat—by tradition designated for a Wisconsin nominee—on the U.S. Court of Appeals for the Seventh Circuit. That vacancy is the longest running opening on the federal appellate bench, having been open since January 2010. (And the vacancy has been known since six months earlier, when Judge Terence Evans, announced his intention to take senior status at the beginning of 2010.) Sen. Baldwin discussed why it took years for the Wisconsin Federal Nominating Commission to recommend potential nominees. And she detailed the procedural delays that have kept President Obama’s nomination of Madison attorney Don Schott from receiving a vote on the floor of the Senate.

  • October 7, 2016

    by Lena Zwarensteyn

    This week, the Supreme Court opened its October Term with only eight justices to hear oral arguments. In the 237 days the Court has operated at less than full capacity, the Senate Majority Leader Mitch McConnell (R-Ky.) has remained steadfast in his refusal to allow the chamber he leads the opportunity to fulfill its constitutional duty to provide “advice and consent” on President Obama’s nominee. While President Obama’s nominee to the Supreme Court, U.S. Court of Appeals for the District of Columbia Chief Judge Merrick Garland, has been patiently waiting for any signal of a public confirmation hearing, he joins a cadre of other languishing judicial nominees. The vacancy on the Supreme Court is mirrored in federal courts across the country and is reaching crisis proportions. As Professors Michael Gerhardt and Richard Painter note in their new Issue Brief, “The New Normal:  Unprecedented Judicial Obstruction and a Proposal for Change,” there are 108 current and future vacancies in our federal courts. This represents more than 10% of our federal judiciary, and the shutdown of this vital branch of government means that Americans are shut out.

    Americans seeking their day in court do so in a judicial system that is significantly overburdened and understaffed. The Senate Majority claims they have done enough, yet they have not even done the minimum to ensure that justice is administered in a fair and efficient matter. Since the Republicans took over the Senate leadership in 2015, they have only confirmed 22 Article III judicial nominees to the Courts. Compare this to other presidents who faced oppositional Senate leadership: President George W. Bush had 68 judges confirmed in his final two years in office and President Bill Clinton had 73 judges confirmed in his final two years in office.  One has to go back to the 1950s to find a remote comparison, and even then President Dwight Eisenhower had twice as many judges confirmed in his final two years (44 judges) compared to President Obama.

  • April 20, 2016
    Guest Post

    by Christopher Kang, National Director, National Council of Asian Pacific Americans

    *This post first appeared on HuffPost Politics.

    This morning, the Senate Judiciary Committee held a hearing on judicial nominations for just the second time this year.

    At this point, I’m not worried about Senate Republicans doing their job—I’m worried that they’ve forgotten what doing their job even looks like.

    Senate Republicans are not only politicizing and undermining the Supreme Court, with their refusal to even consider Chief Judge Garland’s nomination, but they are doing the same thing to lower courts as well. They are likely to damage our entire judiciary—all for political gain, so they can leave more vacancies open for President Trump to fill.

    Since January 2015, Senate Republicans have confirmed only 17 judicial nominees.

    In comparison, from January 2007 to April 2008, Senate Democrats confirmed 45 of President Bush’s judicial nominees.

    The difference is even starker when you consider the circuit courts—the level of our federal courts just below the Supreme Court.

    In fact, with respect to circuit court confirmations, Chairman Grassley has work to do if he doesn’t want the worst record in almost 120 years.

    So far, Chairman Grassley has held hearings on only two circuit court nominees—the last one was ten months ago—and he has not indicated whether he will allow any of the seven pending circuit court nominees to move forward, taking the obstructionist mantra of “No Hearing No Vote” to a whole new level.

  • March 11, 2016
    Guest Post

    by Jonathan C. Carlson, Professor of Law, The University of Iowa College of Law. The views expressed are his own.

    The Constitution directs the President to nominate persons to fill vacancies on federal courts. No one else is authorized to make judicial nominations. Only the President has that power. The Senate’s role is to consider the President’s nomination and decide whether to approve it. If the Senate gives its advice and consent, the President may appoint the nominee to the federal bench.

    This approach to judicial appointments was carefully crafted to create a balance of power between the President and the Senate. The goal, as Alexander Hamilton explained, was to avoid selections based on senators’ “party likings and dislikes, partialities and antipathies, attachments and animosities.”

    Senator Chuck Grassley, chair of the Senate Judiciary Committee, evidently doesn’t care for Alexander Hamilton’s Constitution. When two federal judgeships recently opened in Iowa, Senator Grassley decided that he would himself do both the nominating and the approving of the candidates. To this end, Grassley created his own personal “Judicial Selection Commission.” The chair of the commission, to Grassley’s credit, was a well-respected attorney who, as head of the state bar association, had resisted politicization of state judicial retention elections. But, in contrast to nonpartisan judicial nominating commissions used by senators elsewhere, Senator Grassley’s judicial selection commission was otherwise built to serve “party likings.” Four of the five members were longtime Republican Party activists, and the commission’s candidate-screening process reportedly included “pointed questions” of a partisan-litmus-test variety.

    President Obama duly nominated the persons selected by Grassley. We can be sure, I think, that Grassley made it clear to Obama that no nominee other than Grassley’s nominees would get a fair hearing in the Senate. We can also be sure that moving on Grassley’s selections was the price Obama paid to secure Senate action on a few of Obama’s own judicial nominees.

    But Obama’s gain was minimal. Since February 11, when the second of Grassley’s personal nominees was confirmed, Grassley and the Senate leadership have refused to allow the Senate to vote on any further judicial nominations, even though many nominees have been waiting months for a decision.

  • March 9, 2016
    Guest Post

    by Geoffrey R. Stone, Edward H. Levi, Distinguished Service Professor of Law, The University of Chicago

    * This post was excerpted from Professor Stone’s statement to the Senate Democratic Steering and Outreach Committee.

    In a recent piece in The Washington Post, Miguel Estrada and Benjamin Wittes proclaimed that the only rule that now governs the confirmation process for Supreme Court justices “is the law of the jungle: There are no rules.”

    This is a profoundly misleading – and dangerous – statement. If taken seriously and acted upon, this misconception would undermine 225 years of well-settled tradition and throw the Supreme Court confirmation process into a state of partisan chaos that would damage both the rule of law and the Supreme Court as an institution.

    In fact, when we take a deep breath and actually examine the performance of the Senate over time, it is clear that the Senate defers to the president in these matters as long as the president puts forth nominees who are clearly qualified for the position and who are reasonably moderate in their views. Indeed, this has been the outcome in every single nomination in the last 60 years and, as far as I can discern, in every nomination in American history.

    Moreover, this is true even when the senators disagree with a nominee’s judicial philosophy, even when the Senate is controlled by the opposing party, even when the nominee’s confirmation is likely to have a significant impact on the balance on the Court, and even if the final year of a president’s term. When all is said and done, nominees who are both qualified and moderate are confirmed. Period.

    The “no rules/law of the jungle” assertion is premised primarily on the fact that since the Supreme Court’s 2000 decision in Bush v. Gore, members of the Senate have tended to vote in a more partisan manner than in the past. This is true. In the Roberts, Alito, Sotomayor, and Kagan confirmations, members of the opposing party cast only 26 percent of their votes to confirm, whereas in the five preceding Supreme Court nominations senators from the opposing party cast 73 percent of their votes to confirm.*

    This is, indeed, a troubling trend. It is due largely to the much greater involvement of interest groups in the confirmation process, a phenomenon that raises the political stakes for members of the Senate and gives them an incentive to vote in a more partisan manner. But it is important not to blow this out of proportion. In fact, in the years since 2000 every one of those four nominees was confirmed by the Senate, and they were confirmed with appreciable bipartisan support.