Judicial Nominations

  • November 11, 2013

    by Richard W. Painter, the S. Walter Richey Professor of Corporate Law, University of Minnesota Law School. Mr. Painter served as the Associate Counsel to the President in the White House Counsel’s Office as the chief 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.”

    Cornelia Pillard, who has been nominated by President Obama to the U.S. Court of Appeals for the District of Columbia Circuit, has been favorably reported out of the Senate Judiciary Committee. She still, however, awaits a vote by the full Senate on her nomination. The vote should be held promptly, and should be in the affirmative.

    I have no personal or professional connection with Pillard (pictured), but I believe it is important for the Senate to confirm qualified nominees for the federal judiciary, and she is one of them.
     
    I have not seen a record of appellate advocacy as impressive as Pillard’s since I worked in the White House Counsel’s Office on the 2006 nomination of John Roberts to become Chief Justice of the United States.

    Pillard has worked with a broad range of distinguished appellate lawyers on a wide range of cases, and she knows how courts properly decide cases. Lawyers like Pillard who have in depth experience in appellate advocacy understand the limited role of judges in interpreting and applying the law and know that responsible judges will not assume the role of elected legislators, who make laws. We would significantly diminish the risk of having an activist judiciary if all or most federal appellate judges were to have appellate advocacy experience similar to Pillard’s before they go on the bench. The Senate should not pass up an opportunity to confirm a nominee who has such experience and who will likely impart some of her wisdom and constraint to colleagues on the court.

  • November 8, 2013
     
    The U.S. Court of Appeals for the District of Columbia Circuit with three vacancies is a flashpoint for the partisan battle over judicial nominations. Last week, Senate Republicans blocked the confirmation of Patricia Millet to the D.C. Circuit, using misleading rhetoric about the court’s caseload and accusing President Obama of trying to “pack” the court. (The infographic on the right helps clear up the outlandish court-packing rhetoric being peddled by Senate obstructionists and their allies.)
     
    In addition to Millet, nominees Cornelia “Nina” Pillard and Robert Wilkins are pending before the Senate, with a vote on Pillard scheduled for next Tuesday. Senate Republicans have vowed to continue blocking these nominees, and Senate majority leader Harry Reid (D-Nev.) has indicated that he is open to discussing the so-called “nuclear option” of changing filibuster rules if necessary to get nominees through.
     
    In other judicial nominations news, the Senate Judiciary Committee voted on October 31 to send the nominations of Robert Wilkins (D.C. Cir.) and five district court nominations to the full Senate for confirmation votes. They join other nominations for a total of 15 pending on the Senate floor.
     
    On November 7, President Obama announced four new nominees: Robin S. Rosenbaum (11 Cir.), James D. Peterson (W.D. Wis.), Nancy J. Rosenstengel (S.D. Ill.), and Ronnie L. White (E.D. Mo.). There are now a total of 53 pending nominees, and 92 current vacancies.
     
    For more information on the crisis over judicial nominations, see the latest from In the News” and “Recommended Readings” from JudicialNominatinos.org, a project of ACS.
     
     
  • November 7, 2013
     
    The D.C. Circuit is unbalanced. Nine of the D.C. Circuit justices were appointed by Republican presidents, whereas only five were appointed by Democratic presidents. Some observers have misleadingly focused on the fact that of the eight active judges on the court, four were appointed by Democratic presidents and four were appointed by Republican presidents. However, this metric fails to take into account the six senior status judges who play a weighty role in the court’s decision making. Except for participating in en banc hearings, senior status judges are full-fledged members of the judiciary and routinely impact the court’s decisions.
     
    In a recent House Judiciary Committee hearing, Chairman Goodlatte (D-Va.) cited the six senior status judges as doing the work of an estimated 3.25 full-time active judges. Senator Grassley also stressed the senior judges’ relevancy on the court, saying that “it is clear that the senior judges on the court are contributing a significant amount of work, and will continue to do so for the foreseeable future.”
     
    An example of senior judges’ participation in a high-profile case is Gilardi v. U.S. Dept. of Health & Human Services, a challenge to the Affordable Care Act’s contraception mandate, decided on Nov. 1. The case was before a three-judge panel comprised of Judge Brown and two senior judges, Judge Edwards and Judge Randolph. Undoubtedly, senior judges wield significant power and are still active decision-makers on the court. Looking at the Court’s fall calendar, most cases will be heard by a panel that includes at least one senior judge, so not including them when describing the court’s composition is deceptive.
  • October 30, 2013

    by Rebekah DeHaven

    There are 874 federal judgeships in the United States. Of these, 91 are currently vacant, and there are 20 future vacancies. Thirty-seven of these vacancies are in districts that have been declared judicial emergencies. There are 51 nominees to fill these vacancies, some much closer to confirmation than others.

    These figures mean that 10 percent of our federal judiciary is currently empty. Instead of working to fill these vacancies, some lawmakers are explicitly attempting to reduce the number of judgeships nationwide, and promoting the rhetoric that there are more judges than the U.S. needs to administer its justice system. 

    In April, Senator Grassley introduced the “Court Efficiency Act of 2013,” which proposes reducing the number of seats on the D.C. Circuit from eleven to eight. Although Senator Grassley and others suggest that there are too many judges, the Judicial Conference and members of the federal judiciary have indicated just the opposite. In fact, the resounding message has been that the courts are struggling to keep up. In its March 2013 report the Judicial Conference suggested the addition of 70 permanent and 21 temporary judgeships, as well as converting eight temporary judgeships to permanent positions.

  • October 22, 2013

    by Jeremy Leaming

    After more than four years of obstructing President Obama’s judicial nominations and causing the vacancies on the federal bench to hover at or above 80, right-wing organizations are ratcheting up their efforts to re-write history. The Heritage Foundation, proclaims that no obstruction has occurred and that Obama is remaking the federal bench, but asks us to ignore what unfolded during his first term. The lesser-known Judicial Crisis Network (JCN) is out with a slideshow of 13 graphics that aims to support an effort of Republican senators to shrink the size of the U.S. Court of Appeals for the District of Columbia Circuit, where vacancies have languished for years on end.

    Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) has long sought to chop seats from the D.C. Circuit, widely considered one of the most powerful federal appeals courts in the land, claiming it has a flimsy workload. Grassley and his fellow Republicans successfully kept Obama from filling one of the D.C. Circuit’s longstanding vacancies until the start of his second term. There are still three vacancies on the 11-member court.

    When Obama announced three nominations to those vacancies earlier this year, Grassley introduced a bill aimed at cutting – you guessed it – three seats from the D.C. Circuit, arguing the Circuit’s current judges had light caseloads and there was no need for more judges. But as the Constitutional Accountability Center (CAC) and others have noted, Grassley’s claims about the D.C. Circuit ignore reality. The D.C. Circuit hears far more complex and constitutionally weighty matters than the other federal appeals court circuits. 

    The JCN is headed by Carrie Severino, an attorney devoted like the Tea Party to destroying health care reform and mild regulations (Dodd-Frank) of the financial industry. The group's “infographic” containing 13 slides purports to show that the D.C. Circuit “is the most underworked court in the country.” It is, as People For The American Way’s blog notes, a slideshow “recycling old, discredited arguments ….”

    Earlier this year when Grassley launched his latest attempt to slash judgeships from the D.C. Circuit, he claimed, “No matter how you slice it, the D.C. Circuit ranks last or almost last in nearly every category that measures workload.” That statement caught the attention of The Washington Post’s “The Fact Checker,” which concluded it was deserving of “Two Pinocchios,” meaning it contained “significant omissions and/or exaggerations.”