This was a slow week for judicial nominations. On Tuesday April 8, Senate Majority Leader Harry Reid (D-Nev.) filed cloture on the nomination of Michelle Friedland to the U.S. Court of Appeals for the Ninth Circuit. On Thursday, April 10, the Senate voted 56-41 in favor of cloture on her nomination. Because she is nominated to a circuit court, Senate rules require 30 hours of post-cloture debate before a final confirmation vote, unless there is unanimous consent to yield back that time. As they have done since the November rules change, Senate Republicans refused to yield. Sen. Reid had said that he would keep the Senate in session for an usual Friday afternoon vote but he changed course Thursday evening, announcing that the confirmation vote for Friedland would take place on Monday, April 28, the first day the senators return from a two week recess.
Also this week, there were conflicting reports about President Obama’s progress on filing judicial vacancies. Some argued that he has been as successful as President Bush because of the number of nominees confirmed at this point in their presidencies. Others, however, argued that raw numbers do not offer an accurate comparison because President Obama has seen more vacancies, yet had a lower percentage of his nominees confirmed.
There are now a total of 85 current vacancies and 23 future vacancies (including three vacancies that will become current if a sitting district court judge is elevated to a circuit court). There are 50 pending nominees, two of whom are nominated to future vacancies. There are 36 judicial emergencies. Thirty-one nominees remain pending on the Senate floor.
At The Atlantic, Andrew Cohen discusses “secession by attrition” in which a collection of senators are “starving the federal courts of the trial judges they need to serve the basic legal needs of the litigants who come to court each year seeking redress of their grievances.”
Writing for Daily Kos, Jon Perr criticizes Politico’s recent piece “Obama now outpaces George W. Bush on judges,” for its misleading message. While the Obama administration has made some “headway” against Senate Republicans’ egregious obstruction of the president’s judicial nominations, Perr reveals how Politico’s data shows that President Obama’s nominations have been “confirmed at a lower rate than President Bush’s.”
Yesterday, President Obama signed two executive orders that “will prevent retaliation against employees who disclose compensation information and will require businesses to include race and gender information when reporting compensation data.” Keli Goff at The Root comments on this critical step towards ensuring workplace equality.
At the Daily Journal, Richard L. Hasen discusses Justice Clarence Thomas’ concurring opinion in McCutcheon v. Federal Election Commission and the "faux judicial restraint" of the chief justice’s “gradualism.”
Michelle Olsen at Appellate Daily notes a recent petition to the high court requesting oral argument in a case involving threats made on Facebook.
On Monday, the Senate voted to confirm John B. Owens to the U.S. Court of Appeals for the Ninth Circuit, filling the longest-running vacancy in the country. The seat that Owens filled was a judicial emergency and had been vacant since December of 2004 when Judge Trott took senior status.
On Tuesday, the Senate Judiciary Committee held a hearing for four nominees to Florida district courts, all of whom would fill judicial emergencies if confirmed:
Beth Bloom to the S.D. of Florida;
Paul G. Byron to the M.D. of Florida;
Darrin P. Gayles to the S.D. of Florida; and
Carlos Eduardo Mendoza to the M.D. of Florida.
On Wednesday, the Center for American Progress released a report entitled “Texas, Where Are the Judges?” The report discusses the vacancy crisis throughout Texas and found that “19 years’ worth of cases could have been decided by the Texas district and circuit courts had judges been appointed on schedule.”
On Thursday, the Senate Judiciary Committee voted to report four nominees to the full Senate for consideration:
Cheryl Ann Krause to the 3rd Cir. (Penn.) by voice vote;
Richard Franklin Boulware II to the D. of Nevada, 11-7;
Salvador Mendoza, Jr. to the E.D. of Washington, 17-1; and
Staci Michelle Yandle to the S.D. of Illinois, 17-1.
Also on Thursday, President Obama announced two district court nominations: André Birotte, Jr. to the C.D. of California and Randolph D. Moss to the D. of the District of Columbia.
A recent American Constitution Society symposium explored the vitally important topic of state court judicial selection. Entitled (“Justice at Risk: Research Opportunities and Policy Alternatives Regarding State Judicial Selection” the event empirical evidence showing that how a state selects its judges can impact judicial decision making. The symposium (which was co-sponsored by the American Judicature Society and Vanderbilt Law School) built upon the foundation set by Justice at Risk, a study commissioned by ACS that sounded the alarm over the big money takeover of state courts across the nation. Written by Professor Joanna Shepherd-Bailey of Emory University, who examined thousands state court cases and over 175,000 judicial campaign contributions, Justice at Risk shows that consciously or unconsciously, judges tend to rule in favor of their contributors. For example, a judge who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.
On Wednesday, the Senate held cloture votes on four nominees, quickly followed by successful confirmation votes for all four:
Christopher Cooper to the District of D.C., cloture 56-43, confirmed 100-0;
Douglas Harpool to the W.D. of Missouri, cloture 56-43, confirmed 93-5;
Gerald McHugh to the E.D. of Pennsylvania, cloture 56-43, confirmed 59-41;
Edward Smith to the E.D. of Pennsylvania, cloture 75-23, confirmed 69-31.
Christopher Cooper has been a long-time member of ACS. Gerald McHugh and Edward Smith are welcome additions to the Pennsylvania bench, which is overwhelmed with vacancies. Even with these confirmations, there remain five vacancies in the Eastern District (no nominees), three vacancies in the Western District (no nominees), and two 3rd Circuit Pennsylvania vacancies (1 nominee). There has been serious disagreement and concern over David Porter, thought to be under consideration for one of the Western District vacancies.
Florida courts came one step closer to adding Darrin Gayles to the bench this week when Sen. Rubio (R-Fla.) returned his blue slip, allowing Gayles to have a hearing in the Senate Judiciary Committee. If confirmed, Gayles would be the first openly gay African-American man to be a federal judge. He was nominated by President Obama after Sen. Rubio blocked William Thomas’s nomination, despite Rubio’s early support.