Judicial Nominations

  • 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.

  • July 2, 2013

    by Jeremy Leaming

    Senate Republicans’ agenda of delaying or scuttling judicial nominations has had a particularly corrosive impact on the U.S. District Courts where there are currently 65 vacancies. A July 2 report from the Brennan Center for Justice reveals the large number of vacancies has stayed consistent for five consecutive years for the first time in 20 years.

    Brennan Center Counsel Alicia Bannon in a statement about the report said, “Our trial courts are in trouble. As seats remain unfilled, millions of Americans who rely on district courts are being denied the justice they deserve. District courts can no longer wait. The president and the Senate must find a way to fill these crucial seats. The report, authored by Bannon, also finds that “average caseload in 2009-2012 was 13 percent higher than the average for the preceding four years. Had all vacancies been filled between 2009 and 2012, judges would have had an average of 42 fewer pending cases each year.”

    The larger caseloads are hampering the ability of district courts nationwide to dispense justice, but are having, the report says, an even greater burden on districts where judicial emergencies exist. “Analysis shows that judicial emergencies – a designation of districts with an acute need for judges – have been higher in 2010-2012 than at any other point since 2002,” the Brennan Center notes.

    The report cites several factors that “likely account for the unusually high and sustained level of district court vacancies since 2009. District courts experienced an atypically large number of retirements during the first three years of the Obama presidency, leading to a surge in the number open seats, while at the same time, fewer total district court nominees were confirmed during President Obama’s first term than in other recent administrations. Nominees also faced record wait times from nomination to confirmation in the Senate as compared to other recent administrations, and the President trailed his predecessors with respect to the number of judges nominated during his first three years in office. Finally, many home state senators have been slow to recommend nominees to the President, particularly in states with two Republican senators, which has delayed the process of identifying the nominees.”

    Other reports have shown that Obama has long since picked up the pace of putting forth nominees, but Senate Republicans have not altered their agenda of obstruction. Republicans led by Sen. Mitch McConnell (R-Ky.) have not only continued to slow-walk the president’s judicial nominations, they are holding up his nominations to the Environmental Protection Agency, the Department of Labor, the Consumer Financial Protection Bureau, and nominations to the five-member National Labor Relations Board. Sen. Chuck Grassley (R-Iowa) has even pushed a measure to cut the number of judgeships on the powerful U.S. Court of Appeals for the District of Columbia Circuit.  

  • June 18, 2013

    by Jeremy Leaming

    As some Senate Republicans continue to argue for removal of judgeships from the powerful U.S. Court of Appeals for the District of Columbia Circuit, Sen. Judiciary Chairman Patrick Leahy (D-Vt.) is pushing forward for consideration of President Obama’s recent nominations to fill three vacancies on the Court.

    Sen. Leahy announced yesterday that he is planning for a July 10 hearing before the Committee to consider one of the president’s nominees Patricia Ann Millett, a longtime appellate attorney who has earned the ABA’s highest rating. In announcing the hearing, Leahy took on Republicans’ claims that the D.C. Circuit has a light caseload and that the three current vacancies do not need to be filled. Sen. Chuck Grassley (R-Iowa) has introduced a bill to strip judgeships from the D.C. Circuit and move them to other federal appeals court circuits. As the Constitutional Accountability Center has noted, Grassley’s measure has nothing to do with careful restructuring of the federal appeals court bench, and everything to do with obstructionism.

    Leahy’s June 17 statement noted that some of the same Republicans now calling for judgeships to be stripped from the D.C. Circuit argued during George W. Bush’s administration the Circuit “should have 11 judgeships” and they voted to confirm his nominees for the “ninth, tenth, and eleventh seats ….” Leahy then ticked off a number of judicial nominations to other federal appeals courts that Republicans slow-walked, showing no concern about caseloads for those courts.

    “The American people are not fooled,” Leahy said. “Senate Republicans are playing by different rules. In the past 30 years, Republican presidents have appointed 15 of the last 19 judges named to the D.C. Circuit. Now that these three vacancies exist during a Democratic presidency, Senate Republicans are trying to use legislation to lock in their partisan advantage.”

    That advantage has served the interests of the Republican Party. As the D.C. Circuit is currently situated, it has a decisively right-wing tilt and has issued opinions harmful to workers’ rights, the environment and one widely panned opinion on the president’s power to use recess appointments to fill judicial and executive branch vacancies. That opinion, in Noel Canning v. NLRB, has been appealed by the administration.

  • June 17, 2013
    Guest Post
    by Liz Seaton, Acting Executive Director, Justice at StakeJustice at Stake is a nonpartisan, nonprofit campaign working to keep America’s courts fair and impartial.

    With its new “Justice at Risk” report, the American Constitution Society documents a correlation between big judicial election spending by U.S. businesses and favorable rulings from elected state courts. The report raises questions that are familiar, and they are troubling.
     
    The American public insists that courts be impartial, with no special favors for campaign spenders, so that everyone gets a fair day in court. But confidence in the impartiality of our courts has eroded as business and special interest spending on judicial elections soared in the last decade.
     
    “Justice at Risk” offers a statistical analysis that updates what we know about business interest donations to state supreme court candidates and judicial decisions that followed, specifically in the years since Citizens United:
     

    - “The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.”

    - If a justice’s campaign gets half of its contributions from business groups, then the justice would be expected to favor business interests by voting their way almost two-thirds of the time.

    - The empirical relationship identified in the study between campaign contributions and justices’ voting exists “only in partisan and nonpartisan systems; there is no statistically significant relationship between money and voting in retention election systems,” when a justice stands in a yes-or-no contest with no opponent.

    - For justices affiliated with the Democratic Party, the relationship between business contributions and voting is stronger than for justices affiliated with the GOP.

     
    These results add to the debate about the critical need for reforms to keep the influence of campaign cash out of the courtroom.
     
  • June 13, 2013

    by Jeremy Leaming

    The federal bench with the backing of lots of money from corporate America is unsurprisingly increasingly favorable to corporate interests and that fact is not likely to change unless balance is brought to the courts, Sen. Elizabeth Warren said at the 2013 ACS National Convention.

    Sen. Warren ripped into the conservative movement that has spent 30-some years helping to craft courts that are kind to business interests at the great detriment to individual liberties.

    “Here in Washington, power is not balanced,” Warren said on the opening day of the 2013 ACS Convention. “Instead, power is becoming more concentrated on one side. There are powerful, deep-pocketed corporate interests lined up to fight to protect their privilege and to resist any change that would limit corporate excesses.”

    And corporate interests are spending boatloads of money to keep the federal courts on their side.

    “These big corporate interests are savvy,” Warren continued. “They fight every day on Capitol Hill and in the agencies, devoting enormous resources to the task of bending legislation to benefit themselves.  But they also devote enormous resources toward influencing the courts.

    “Why? Because they know that influencing those who interpret 

    the law is another extremely effective way to achieve their goals.  In our democracy, when we write our laws, reasoned debate, public opinion, and political accountability are all factors that can thwart the efforts of powerful interests.”

    And the money spent has paid off. Warren, citing an ACS study noted that as of 2008 the federal appeals courts have been “dominated by judges whose previous professional experience is generally corporate or prosecutorial.”

    Though President Obama has placed some judges on the bench not in this trend, such as U.S. District Court Judge Edward Chen, he has nonetheless continued to nominate persons with heavy corporate backgrounds.

    Diversity of backgrounds needs to be a priority if the federal courts are going to provide impartial justice, instead of creating outcomes constantly favorable to corporate interests.