Judicial Nominations

  • July 16, 2013

    by Jeremy Leaming

    As AEI’s Norman Ornstein predicted last week at a Common Cause event on the escalating use of the filibuster to scuttle consideration of legislation and nominations, senators crafted a deal to avoid a slight change to rules governing the filibuster.

    TPM’s Sahil Kapur reports that the deal means that nominees to the National Labor Relations Board (NLRB), Consumer Financial Protection Bureau (CFPB), the Environmental Protection Agency, the Labor Department and the Export-Import Bank would get up-or-down votes in the Senate. Also Sharon Block and Richard Griffin, appointed to the NLRB via recess appointments and then re-nominated by President Obama would have to be replaced with new nominees, but with a written promise that the new nominees would be confirmed before the end of August. Following the deal the Senate voted to begin debate on the nomination of Richard Cordray to head the CFPB. Cordray’s (pictured) was recess-appointed to the position by President Obama because of Republican opposition to the agency created by financial overhaul legislation.

    Yesterday during an event at the Center for American Progress, Senate Majority Leader Harry Reid (D-Nev.) said that the only way for Senate Republicans to avoid a vote to slightly change the rules surrounding the filibuster would be to stop blocking consideration of the president’s executive branch nominees. Regarding today’s deal he said, “I think we see a way forward that will be good for everybody,” The New York Times reports.

    Common Cause, which last year lodged a lawsuit challenging the constitutionality of the filibuster, said the deal should be the start of further action on the filibuster.

    “A vote on these nominees should be just the starting point for rules changes that would break the Senate’s gridlock permanently,” said Common Cause Staff Counsel Stephen Spaulding. “Senate rules should guarantee a prompt review in committee and confirmation by a simple majority vote for ALL future presidential nominees.”

    In a recent guest post for ACSblog, former ethics attorney for President George W. Bush also urged action on the filibuster, saying the “situation is even worse under President Obama now that Senate Republicans who once said they despised the filibuster have shown they actually enjoy it.”

    Regarding judicial nominations, which were not on the table in the discussions that lead to today’s deal, there are more than 80 federal court vacancies, 32 of them considered judicial emergencies. The high vacancy rate has plagued the majority of Obama’s time in office. As noted here Republicans led by Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) are threatening to scuttle or greatly stall President Obama’s nominations to fill the three vacant seats on the powerful U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit hears myriad constitutional concerns, including many challenges to government regulations intended to enforce environmental laws. For more about vacancies on the federal bench, see JudicialNominations.org.

  • July 12, 2013
    Guest Post

    by Richard W. Painter, former Associate Counsel to the President and Chief White House ethics lawyer, 2005-2007. Painter is co-author of the ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform.”

    Word on Capitol Hill is that Senate Democrats are thinking seriously about changing the Senate's rules to make filibusters less likely. This is a welcome development because the filibuster -- a procedural mechanism for refusing to allow any vote to take place -- has no place in a body that prides itself on deliberation and decision. A decision not to decide, or to allow a minority of senators to prevent the others from deciding, is not deliberation. It is nothing more than obstruction, a way of saying that "if the majority won't vote my way I won't let them vote at all."

    Less than a decade ago the tables were turned and Democrats used filibusters to block President George W. Bush's judicial nominees. Republicans considered amending the Senate's rules to eliminate or reduce the likelihood of filibusters, but in the end they chickened out. They were perhaps more interested in preserving their power to frustrate a future Democratic president than in supporting President Bush. Perhaps they believed that even senators of the president's own political party benefit from filibusters because they can ask the White House for something in return for trying to break the filibuster. For whatever reason Senate Republicans failed to do something about the problem and some of President Bush's most qualified judicial nominees were kept off the federal courts as a result. Other nominees had to wait around for months before they were finally confirmed.

    This situation is even worse under President Obama now that Senate Republicans who once said they despised the filibuster have shown that they actually enjoy it. Thus far, Senate Democrats have followed the precedent of whining about the filibuster but not doing anything about it, perhaps fearing that they may once again be in the minority with a Republican in the White House.  

  • July 11, 2013

    by Jeremy Leaming

    Sen. Majority Leader Harry Reid (D-Nev.) may be nearing a vote to alter procedures around the filibuster, which Senate Republicans have used over and over again to kill consideration of major legislation and seriously delay or scuttle President Obama’s nominations to the federal bench and to executive branch openings. For that matter, as former Labor Secretary Robert Reich recently wrote the Senate Republicans “have filibustered almost everything, betting that voters will blame Democrats for the dysfunction in the Congress as much as they blame the GOP.”

    Reid, according to The New York Times is considering asking his Democratic peers in the Senate to vote to “take the exceptional step of barring the minority party from filibustering presidential appointees.” The report continues, however, that such action would not “affect filibusters of legislation or judicial nominees.” At the moment there are still more than 80 vacancies on the federal bench. The vacancies have hovered at 80 or above for years now. (See JudicialNominations.org for more information about the vacancies.)  

    Yesterday, during a Senate Judiciary Committee hearing, Republicans signaled they were preparing to delay or block President’s Obama’s nominees to the U.S. Court of appeals for the District of Columbia Circuit.

    Earlier this year Reid, after threatening a similar action on the filibuster, instead entered into an agreement with Minority Leader Mitch McConnell (R-Ky.) that has been widely panned as ineffective.

    Reid, from the Senate floor, blasted McConnell for failing to adhere to the modest agreement. “Exactly three weeks after Senator McConnell committed to process nominees consistent with the norms and traditions of the Senate, he led Republicans in an unprecedented filibuster of a highly qualified nominee for Secretary of Defense,” Reid said. “Nothing could be a starker violation of a commitment to return to the norms and traditions of the Senate than launching the first-ever filibuster of a Secretary of Defense.”

    Reid ticked off other executive branch and federal agency positions that Republicans are stalling or threatening to block, such as nominations to the National Labor Relations Board (NLRB), the Consumer Financial Protection Bureau, the Environmental Protection Agency and the Department of Labor.

  • July 10, 2013

    by Jeremy Leaming

    Because of the heighted partisanship that has engulfed the U.S. Senate, President Obama has had great difficulty filling vacant seats on the federal bench and within the executive branch, even with nominees that the Republican Party would typically embrace. Case in point is the nomination of a Patricia Millett, an accomplished appellate court attorney who has argued more than 30 cases before the U.S. Supreme Court, to fill one of three vacant seats on the powerful U.S. Court of Appeals for the District of Columbia Circuit. As Think Progress’ Ian Millhiser notes Millett also raked in more than “a million dollars last year representing wealthy clients at the elite law firm of Akin Gump Strauss Hauer & Field,” and has defended the pro-business Supreme Court as actually impartial on corporate interests that have come before it.

    But Millett and the other nominees to the D.C. Circuit are on a difficult path to confirmation, largely because of Republican’s desire to continue wreaking havoc on President Obama’s agenda, regardless of how moderate it is.

    July 10, the Senate Judiciary Committee opened the battle with a hearing on Millett’s nomination, which showcased a bit about her qualifications, but even more about Republicans’ political machinations.  

    The hearing, as Legal Times’ Todd Ruger put it had little to do with Millett’s qualifications to serve on the federal bench. “The fight about her nomination” to the D.C. Circuit “isn’t about her.” Instead Ruger noted Millett spent most of her time “listening to Republicans explain the political rationale behind why they will fight against her confirmation.”

  • July 9, 2013

    by Jeremy Leaming

    To hear Ranking Senate Judiciary Committee member Sen. Chuck Grassley (R-Iowa) tell it, the Senate is not the chamber where noncontroversial judicial and executive branch nominees languish.

    Yesterday when the Senate confirmed Gregory Phillips to a seat on the U.S. Court of Appeals for the Tenth Circuit, Grassley crowed in a press statement that “the Senate is processing the President’s nominees exceptionally fairly. President Obama is certainly being treated more fairly in the beginning of his second term than Senate Democrats treated President Bush in 2005. It is not clear to me how allowing more votes so far this year than President Bush got in an entire year amounts to ‘unprecedented delays and obstruction.’”

    Grassley has long argued that there is no obstruction of judicial nominees in the Senate, that vacancies on the federal bench have remained high because the president has been slow to put forth nominees and that one of the most powerful federal appeals court circuits is not all that busy, so it should be stripped of three judgeships. All of these assertions are beyond wobbly, they’re intentionally misleading. Grassley’s arguments for yanking judgeships from the U.S. Court of Appeals for the District of Columbia Circuit are especially obnoxious, aimed at trying to ensure that the D.C. Circuit remains tilted to the right for as long as possible.

    Despite the nominations that have been confirmed this year, there remain more than 80 vacancies on the federal bench, for a reason. Many of this year’s confirmations for example, should have happened in the previous Congress. Instead, the president’s judicial nominees have endured a significantly longer and divisive path to confirmation than Bush’s.

    When Phillips was confirmed for a Tenth Circuit judgeship, Sen. Judiciary Chairman Patrick Leahy (D-Vt.) shot back at Grassley’s pronouncements on the success of Obama’s judicial nominations, noting that confirmations occurring this year were long overdue, essentially highlighting the fact that the length of time from nomination to confirmation has expanded because of the delaying tactics of Senate Republicans.