Judicial Nominations

  • May 9, 2013

    by Jeremy Leaming

    It seems whenever given the opportunity to weaken the judiciary, Sen. Chuck Grassley (R-Iowa) runs with it and in the process spreads lots of misinformation about the federal courts.

    Grassley, who has helped his Republican colleagues in the Senate block or slow-walk President Obama’s judicial nominees, has called for cutting the number of judges on the U.S. Court of Appeals for the District of Columbia Circuit, discussed here.

    Now as the Senate Judiciary Committee begins consideration of the bipartisan comprehensive immigration bill, S. 744, the Ranking Member Grassley has offered 77 amendments to the legislation. Among them is one, dubbed Grassley17, which would isolate immigration court rulings from federal court review. As it stands now, the bill provides for some judicial review. For example, individuals denied citizenship could seek review in a district court or court of appeals pursuant to the Administrative Procedures Act.

    But Grassley’s effort to alter the comprehensive immigration measure would close the door to federal courts, except for one – in Washington, D.C. and only for review of constitutional challenges. Thus if immigration judges improperly deny or revoke citizenship, their actions will largely go unchallenged.

    Not only is Grassley’s effort an affront to judicial review, it is, let’s be honest, a part of a wider attempt to greatly slow or scuttle immigration reform. S. 744 is a rather large bill and far from perfect. It includes stringent enforcement provisions including billions of dollars for the Department of Homeland Security to spend on border enforcement. It also requires undocumented immigrants to wait at least 10 years until they can apply for legal residence and another three years until naturalization, according to The New York Times.

    But senators have offered more than 300 amendments to the immigration reform bill. Seth Freed Wessler of ColorLines says the Republican amendments “would largely gut the promise of a path to citizenship and impose nearly unachievable benchmarks for border security.” Nonetheless Wessler notes Democrats control the committee and are thus likely to hold off many of the amendments. Wessler though notes some of Grassley’s other amendments, such as one that would strike language aimed at protecting “immigrants from being deported because” of anti-immigrant laws, such as the one enacted by Arizona.

  • May 6, 2013

    by John Schachter

    Lest anyone still doubt corporate influence (or is it control?) over the nation’s high court, Adam Liptak’s nearly 3,000-word article in yesterday’s New York Times should resolve any uncertainties. The Court’s business rulings, Liptak notes, “have been, a new study finds, far friendlier to business than those of any court since at least World War II. In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes.”

    The latest report, published in April in The Minnesota Law Review, looks far beyond cursory glances and anecdotal examples, studying 2,000 court decisions over a 65-year-period ending in 2011. “The study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10,” Liptak notes. “But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.”

    Before right-wing skeptics criticize the latest report as biased propaganda, we should note that the authors who prepared the report – Lee Epstein, a USC professor of law and political science; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago – are no one’s idea of a leftist cabal.

    This study, meanwhile, comes on the heels of a new report by the Constitutional Accountability Center (CAC) that found that the Supreme Court continues to hear more cases involving business interests and “that the Chamber [of Commerce] continues to win the vast majority of its cases pending before the Roberts Court.” ACS’s own Jeremy Leaming took a look at this report and the broader issue just four days ago in a post for ACSblog. 

  • April 30, 2013

    by Jeremy Leaming

    The Senate Judiciary Committee’s Ranking Member Chuck Grassley (R-Iowa) likes to pin blame for the high vacancy rate on the federal bench on President Obama, saying he has not put forth enough nominees. Some befuddled reporters have bought and pushed Grassley’s line, or at least part of it to report that both parties are to blame in this matter.

    Grassley and others, however, should take a look at the work of Jennifer Bendery at The Huffington Post, who notes, like other honest observers of the fight over judicial nominations, that the obstruction is and always has been the product of Republican senators. A careful look at the judicial nominations process reveals, she writes, “the bigger problem is Republican senators quietly refusing to recommend potential judges in the first place.”

    Obama came into office promising to work with the other party and on judicial nominations that is what he’s attempted to do. In their 2012 book, Thomas E. Mann and Norman J. Ornstein blast Republicans as being largely to blame for the heightened obstruction of nominations and legislation.

    Citing a study by the Alliance for Justice, “Judicial Vacancies Without Nominees,” Bendery reveals it is rather lazy to report that both parties are to blame for the ongoing strife over judicial nominations and the large number of vacancies on the federal bench. Most of the nominees to the federal bench are to the district courts and senators, Bendery notes, jumpstart that process. Senators are supposed to make “recommendations from their home states, and the president works with them to get at least some of the nominees confirmed – the idea being that senators, regardless of party, are motivated to advocate for nominees from their states.”

    The research from AFJ shows that it is largely Republicans who are stalling the process. Michelle Schwartz, director of AFJ”s Justice Programs, told Bendery, “It’s disingenuous at best for Republicans to complain about the number of judicial vacancies without nominees when Republicans themselves are responsible for the majority of those vacancies. Nearly two-thirds of the vacancies without nominees are in states with at least one Republican senator, most of whom have consistently refused to work with the White House in good faith to identify qualified candidates.”

  • April 25, 2013

    by Jeremy Leaming

    Last year, Sen. Majority Leader Harry Reid (D-Nev.) took to the Senate floor to bemoan his Republican colleagues’ ongoing use of the filibuster to block or greatly delay the president’s nominations to executive branch agencies, the federal bench, and to defeat consideration of legislation.

    Reid then praised some of the senators who have been pushing for filibuster reform, such as Sens. Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.). The plan, in part, would force senators to work harder to sustain a filibuster. Merkley calls it a “talking filibuster.” In a press release, Merkley explains how his proposed changes would blunt the use of the filibuster. (Sen. Merkley is one of the featured speakers at the 2013 ACS National Convention in June.)

    As it stands now Republicans have crafted a new norm of requiring a supermajority to end debate and allow up-or-down votes on legislation and nominations. The compromise gun bill was killed because of this new norm, though some wobbly pundits suggested the president was at fault. Indeed the late Bob Edgar blasted the use of the filibuster as essentially shutting the place down and his group lodged a lawsuit to force reform of the procedural tool.

    At the start of the 113th Congress, Merkley and other senators urged a simple majority vote to change the Senate’s rules on the filibuster. Sen. Tom Harkin (D-Iowa), said “a revolution has occurred in the Senate in recent years. Never before was it accepted that a 60 vote threshold was required for everything. This did not occur through Constitutional Amendment or through a great public debate. Rather, because of the abuse of the filibuster, the minority party – the party the American people did not want to govern – has assumed for itself absolute and virtually unchecked veto power over all legislation, any executive branch nominee, no matter how insignificant the position, and over all judges, no matter how uncontroversial.” 

  • April 24, 2013

    by Jeremy Leaming

    If you’re one of the president’s nominees to the federal bench it helps to have a signficant connection to the Senate Judiciary Committee’s Ranking Member Chuck Grassley (R-Iowa).

    Jane Kelly, an assistant public defender in Iowa, nominated in January to a seat on the U.S. Court of Appeals for the Eighth Circuit was today confirmed to the federal appeals court 96 – 0. She was nominated by President Obama in January. She is the second woman and first public defender to serve on the Eighth Circuit. Both state senators, Grassley and Tom Harkin (D-Iowa) worked closely to move along the nomination.

    But of course most nominees do not have the sort of backing Kelly received. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) in a press statement lauding the confirmation, again noted that on average the president’s appeals court nominees “wait 132 days for a vote in the Senate, compared to just 18 days” for Obama’s predecessor. 

    Regardless of uninformed or brain-addled pundits who argue Obama is at fault for the judicial vacancy crisis or for filibusters of certain pieces of legislation, the reality is that Senate Republicans led by Minority Leader Mitch McConnell (R-K.Y.) have stuck to agenda of obstruction. In the case of the federal bench, Senate Republicans have put aside the concerns of Americans who should and need to be able to rely on an efficient court system for political machinations.

    Sen. Grassley, who supported Kelly, saying she is “well regarded in my home state” is also leading an effort to limit the president’s ability to fill vacancies on the 11-member U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit is one of the nation’s most important federal appeals courts, hearing complex litigation often focusing on high-profile constitutional concerns. Patricia Wald, who served on the D.C. Circuit for 20 years, wrote for The Washington Post that the Circuit “hears complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary American lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more.”