Happy 2014. With the New Year comes a renewed hope of expediency in the judicial nomination and confirmation process. The pace of progress, however, remains to be seen.
Before the Senate recessed in December, it failed to pass a resolution by unanimous consent that would have allowed the existing judicial nominations to be held over until 2014. As a result, 55 nominees were returned the White House. Robert Wilkins, nominated to the D.C. Circuit, was the only nominee not returned, because the procedural status of his nomination allowed him to be held over without unanimous consent. Cloture was invoked on his nomination on January 9, and a final vote is scheduled for 5:30 p.m. on Monday, January 13.
On January 6, President Obama re-nominated 54 of the nominees whose names were returned to the White House in December. All of these nominees were returned to the Senate Judiciary Committee. Those who already had a confirmation hearing do not have to repeat the hearing process, but all nominees, including those voted out of Committee last year, must be voted out onto the Senate floor.
The only candidate not re-nominated was William Thomas, who had been nominated to the Southern District of Florida. His nomination was dropped because of opposition from Sen. Marco Rubio (R-Fla.), who had previously supported Thomas. Had he been confirmed, Thomas would have been the first openly gay African American federal judge.
On January 8, the Senate Judiciary Committee held a hearing for three nominees: James D. Peterson (W.D. Wis), Nancy J. Rosenstengel (S.D. Ill.) and Indira Talwani (D. Mass.).
As the end of 2013 quickly approaches, Senate leaders are working to move as many judicial nominations as possible before recess. However, some Senators continue to obstruct progress at every opportunity, slowing the pace of confirmations.
Brian Davis was confirmed to the Middle District of Florida on December 20, and is the only nominee to be confirmed since our last update. There has been speculation about a possible deal that will allow some nominees to be confirmed, or allow all nominees to be held over into the New Year, thereby avoiding the nominees being sent back to the White House. If sent back, they will need to be re-nominated by President Obama in January.
It seems most likely that nominees currently pending on the Senate floor, including Robert Wilkins for the D.C. Circuit, will not receive votes until the Senate returns in January.
Obstruction continues at the Judiciary Committee level, too. On Wednesday, December 18 five nominees were scheduled for a committee hearing. Minority members of the Committee invoked the two-hour rule, causing the hearing to be delayed until Thursday. Also on Thursday, December 19, the Committee was poised to vote on 15 nominees. Prior to the Committee meeting Senator Leahy (D-Vt.) issued a statement stressing the importance of reporting these nominees out of Committee before recess. Senator Grassley (R-Iowa), however, requested that the nominees be held over, as is often the case when nominees appear before the Committee for the first time for a vote. Senator Leahy acquiesced, but noted that all of these nominees had been scheduled for votes more than once before, but the Committee had not had quorum to vote.
This has been a busy week for judicial nominations. The Senate has remained in session over the course of several days and nights to allow for post-cloture time on judicial nominations to expire and to be able to vote on nominees’ confirmations.
Patricia Millet was confirmed to the D.C. Circuit on Tuesday, filling the ninth seat on the 11-member court. In the early hours of Thursday, Cornelia “Nina” Pillard was also confirmed to the D.C. Circuit, filling the tenth seat. Robert Wilkins’s confirmation vote to fill the last remaining vacancy on that court is anticipated in the coming days.
Four district court judges were also confirmed on Thursday: Landya McCafferty (D. N.H.); Elizabeth Wolford (W.D. N.Y.); Susan Watters (D. Mont.); and Brian Morris (D. Mont.). McCafferty, Wolford, and Watters are the first women to be confirmed to each of their courts. The seats filled by Wolford, Watters, and Morris were all judicial emergencies.
by David M. Brodsky, principal of Brodsky ADR LLC, and Chair of the ACS Board of Directors.
As new Board chair, and on behalf of the ACS Board, staff, and extended family, I want to bid a fond farewell to retiring Board members Jay Eisenhofer, Faith Gay, Ted Shaw, and Steve Susman, each a legal legend and significant contributor to ACS's growth and impact, and each a lifelong member of the ACS family.
Jay Eisenhofer joined the ACS Board in 2009 and is the co-founder of one of the most successful law firms in the country, regularly representing major pension and investment funds and others in shareholder class and derivative litigation for the protection of shareholders. Jay is consistently ranked as one of the leading securities and corporate governance litigators in the country. On a personal level, Jay has been a generous and committed supporter of ACS, as well as numerous other organizations. Jay chaired the Judicial Nominations Task Force and helped make it a vibrant and effective player in the efforts to counter the obstructionism of judicial nominations and educate the public about the need for filling longstanding judicial vacancies. We will truly miss Jay's always practical advice and his enormous energy but we know we aren't losing his relationship with ACS, as we are very pleased to have invited him to join the Board of Advisors.
Faith Gay joined the ACS Board in 2006 and is Co-Chair of the National Trial Practice Group at Quinn Emanuel Urquhart & Sullivan, LLP. Over her 25-plus years as a litigator, she has been repeatedly recognized as one of the leading trial, appellate and white collar lawyers in the United States. Her practice is divided between complex civil litigation and corporate governance/white collar matters. She has also devoted significant time and energy to public interest litigation, such as her successful defense of a constitutional amendment establishing a state minimum wage before the Florida Supreme Court, as well as immigration and housing matters on a pro bono basis. She played an equally important role on the ACS Board and, especially, our Annual Conventions, devoting time and her enormous creative energy to making each of them a memorable event. We will miss her ideas and her energy but are grateful that she has agreed to join our Board of Advisors.
On November 21, the Senate voted to change the rules on filibusters for judicial nominations to require 50, not 60, votes for cloture on a nominee. This so-called “nuclear option” was a controversial move, yet ultimately necessary to stop Senate obstructionists from effectively shutting down the judiciary with filibusters of President Obama’s nominees.
Following the rules change vote, Senate Majority Leader Harry Reid (D-Nev.) made a motion to reconsider the cloture vote on Patricia Millet for the D.C. Circuit, which was previously blocked. The vote on her confirmation is expected to be held when the Senate returns to session on December 9. It is anticipated that reconsideration of Federal Housing Finance Agency nominee Rep. Mel Watts (D-N.C.), as well as D.C. Circuit nominees Cornelia “Nina” Pillard and Richard Wilkins, will soon follow.
ACS President Caroline Fredrickson explained: “With obstructionists in the Senate bent on shutting down the judiciary, something had to give…Our judicial system is hamstrung and a rules change was necessary to ensure it gets back up and running.” Leading up to the rules change, Fredrickson discussed the importance of confirming judicial nominees on PBS’s NewsHour and MSNBC’s The Cycle.
Without the filibuster, the hope is that judicial nominations and confirmations will speed up when the Senate returns after the holidays. This depends, however, on the blue slip process, which some observers predict will be the obstructionist tactic of choice without the filibuster. Under current Senate Judiciary Committee rules, Senators must sign off on judicial nominees for judgeships in their state, known as “returning a nominee’s blue slip,” before the Committee can hold a hearing on a nominee.