Judicial Nominations

  • October 12, 2015
    Guest Post

    by Russell Wheeler, Visiting Fellow, Governance Studies, Brookings

    Federal courts are facing a toxic mix of judges creating vacancies at an usually high rate and some Republican senators exploiting Senate traditions to prevent nominations in their states. And the Senate Judiciary Committee and Republican Conference leadership have aggressively slowed down confirmation of those nominations that make it to the Senate.*

    The net effect is a sharp increase in vacant judgeships, putting additional strains on sitting judges, including those who have earned a right to a reduced workload. It mainly affects civil litigants, including small businesses, because of criminal cases’ statutory priority. In the final two years of the Reagan, Clinton and Bush two-term presidencies -- all with divided government -- vacancies decreased. That seems highly unlikely in these final two years of the Obama presidency.

    The October 5 confirmation of a district judge reawakened complaints that seven confirmations in 2015 compare poorly to the 33 confirmations at the same point in 2007, George W. Bush’s seventh year in office.

    In response, majority members of the Senate Judiciary Committee have said that the Senate, over the six-plus years of the Obama administration, has confirmed more judges than in the comparable period of the Bush administration.

    That’s true -- as of October 5, 310 Obama confirmations versus 265 Bush confirmations.

    They’ve also complained, as did Senator John Cornyn on the Senate floor on September 17 (repeating almost verbatim a July 30 floor statement by Judiciary Committee Chair Charles Grassley), that Senate Democrats confirmed 11 judges “at the end of last year.” (Actually, it was 12, on December 16, and most were unanimous.)

    Leaving 11 nominations for confirmation in 2015, said Cornyn, would have put the Senate “roughly . . . on pace for judicial nominations this year compared to 2007.”

    That’s only true with a tortured definition of “roughly on pace.” Eighteen is not “roughly” the same as 33. And those 33 confirmations in 2007 represent a 13.0 percent increase over the number on January 1, 2007.  Even moving 11 confirmations from 2014 to 2015 would have produced only a 9.9 percent increase over the January 1, 2015, number.

    More important, though, neither claim is particularly relevant. The ultimate purpose of the confirmation process is to fill vacant judgeships, not to create comparative confirmation scorecards.

  • September 29, 2015
    Guest Post

    by Senator Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary Committee

    Senate Republicans campaigned last year on the promise that they would govern responsibly if they won the majority. Unfortunately, rather than solving problems, the current Republican leadership has instead prioritized divisive issues that play only to their political base. As a result, Senate Republicans have virtually shut down the confirmation process for judicial nominees and the Federal bench is approaching a vacancy crisis. This should be alarming to anyone who cares about our justice system.

    In the nearly nine months since Republicans have been in the majority, judicial vacancies have almost doubled. And under Republican leadership, the Senate this year has confirmed just six judicial nominees, while dozens more await a confirmation vote. This is no way to respond to a looming vacancy crisis that will negatively impact Americans’ ability to seek justice in our courts.

    The Senate’s constitutional role of advice and consent should be above partisan politics. For much of the Senate’s history, members worked across the aisle to confirm judges.  In 2007, when I was Chairman of the Judiciary Committee, we had confirmed 29 judges nominated by President Bush at this same point in his presidency. And in the last two years of the Bush administration, we confirmed 68 nominees. We also moved President Bush’s pick for Attorney General, Michael Mukasey, in a prompt manner that took just 53 days from announcement to confirmation. 

    By any measure, Republicans have failed to move President Obama’s nominees in a responsible manner. The nomination of Attorney General Loretta Lynch, an impressive and highly qualified lawyer, languished on the floor for 56 days— longer than the five previous Attorney General nominees, combined.  From announcement to confirmation, Loretta Lynch’s nomination languished for 166 days because of Republican obstruction. When Republicans finally did call her up for a vote, they required—for the very first time in Senate history—a procedural vote to overcome a filibuster on her nomination before finally approving her confirmation. And by confirming just six of President Obama’s judicial nominees this year, Senate Republicans are on pace to have the worst confirmation record of any Senate in more than a half century.

  • July 10, 2015

    by Caroline Cox

    On Tuesday, the Senate confirmed Kara Farnandez Stoll with a 95-0 vote for a seat on the U.S. Court of Appeals for the Federal Circuit. The Senate Judiciary Committee approved her nomination in April, and her confirmation will make her the first minority woman to serve on the Federal Circuit.

     The Senate Judiciary Committee voted on three judicial nominees on Thursday. The Committee voted to send the nominations of Luis Felipe Restrepo, to serve on the U.S. Court of Appeals for the Third Circuit, Travis Randall McDonough, to serve on the U.S. District Court for the Eastern District of Tennessee, and Waverly D. Crenshaw, Jr., to serve on the U.S. District Court for the Middle District of Tennessee, to the Senate for confirmation votes.

    The large number of judicial vacancies continue to make it difficult for federal courts to adequately conduct business and deliver justice. Carl Tobias, the Williams Chair in Law at the University of Richmond, urges the Senate to fill the vacancies on the U.S. Court of Federal Claims at The Hill, and the blog for the Alliance for Justice examines how Texas has become the epicenter of the judicial vacancy crisis.

    There are currently 62 vacancies, and 27 are now considered judicial emergencies. There are 17 pending nominees. For more information see judicialnominations.org.

  • May 1, 2015

    by Caroline Cox

    On Thursday, President Obama announced five new judicial nominations: Todd Sunhwae Kim to be an Associate Judge of the District of Columbia Court of Appeals, and Julie Helene Becker, William Ward Nooter, Robert A. Salerno, and Steven M. Wellner to be Associate Judges of the Superior Court of the District of Columbia.  

    Senator Chuck Grassley, the chair of the Senate Judiciary Committee, refuses to admit his part in the delays on judicial nominees. As the Alliance for Justice explains, the senator has claimed that Republicans should take credit for nominees confirmed last congress, but has denied any responsibility for two months of Loretta Lynch’s confirmation wait that occurred in the same time period.

    More troubling still, the senator’s comments at the National Press Club on Monday indicate that he may wish to shut down judicial confirmations entirely. Senator Grassley stated, “Come July of 2015, probably they’ll be cut off and not approving any.”

    The blog of People for the American Way illustrates the problem with cutting off judicial confirmations in July. Not only could this move continue to swell the number of judicial vacancies, but it also comes at a time when the nominees that have presented are being considered at a glacial pace.

    There are currently 55 vacancies, and 23 are now considered judicial emergencies. There are 17 pending nominees. For more information see judicialnominations.org.

  • April 24, 2015

    by Caroline Cox

    The U.S. Senate made another judicial confirmation on Monday. In a vote of 91-0, the Senate confirmed the nomination of George C. Hanks, Jr. to be a United States District Judge for the Southern District of Texas. Additionally, in unanimous voice votes, the Senate Judiciary Committee voted out two more nominees.  Kara Stoll, nominated to be a United States Circuit Judge for the Federal Circuit, and Roseann A. Ketchmark, to be a United States District Judge for the Western District of Missouri, were both voted out of committee. 

    Overall, the Senate continues to delay on confirming nominees. Republican leadership has refused to accept responsibility for the judicial vacancies. Texas, for example, has ten current vacancies according to the Alliance for Justice. Senate Republicans have done little to alleviate this pressing problem, and have they failed to accept their part in creating judicial emergencies. 

    U.S. Senator Chuck Grassley announced that he will recommend two Iowans for District Court vacancies this week, and it looks as though he will move quickly to move the nominees through the process. The Des Moines Register argues that the senator should apply this same sense of urgency to other nominees.

    Senator Mitch McConnell may be slowing down judicial nominations as means of getting back at Democrats for previous filibuster reforms. But as ACS President Caroline Fredrickson points out in a recent article at Talking Points Memo by Sahil Kapur, these delays may offer an opportunity for progressives to mobilize their base.

    After the confirmation of Loretta Lynch, the Senate now needs to consider Sally Yates to be Deputy Attorney General. Senator Patrick Leahy issued a statement on the nomination and the importance of moving more quickly on judicial nominations.

    There are currently 53 vacancies, and 23 are now considered judicial emergencies. There are 17 pending nominees. For more information see judicialnominations.org.