judicial vacanices

by Jeremy Leaming

The Senate may soon vote on one of the 19 judicial nominations that were left pending before members recessed in August for electioneering. Even if it does take a bit of time to confirm a judicial nominee, the Senate still has a long way to go to fill a large number of vacanices on the federal bench, which were caused primarily by Senate Republicans' obstructionism.

Some continue to write that the Obama administration has failed to put forth enough nominations for the federal bench. But that’s merely reciting a right-wing or Sen. Chuck Grassley (R-Iowa) talking point. It doesn’t add much anymore to the conversation. The Brookings Institution's Russell Wheeler noted earlier this year in a progress report on judicial nominations that while Obama, at that point in his presidency had made fewer district court nominations than Presidents Bill Clinton and George W. Bush, he had also made more circuit court nominations.

The only point that matters is that the federal bench has a high number of vacancies – more than 80, and many of them are judicial emergencies – not because of the number of nominations made, but the number of nominations stalled. Moreover, as an unnamed White House aide told The Huffington Post, it doesn’t make a difference as to when the nominations are made, as long as the Senate continues to obstruct. (Yes, The Post piece cited also includes the lame line about Obama not nominating enough folks for the federal bench.)

The 19 pending nominees have already been run through the Senate Judiciary Committee, and are ready for an up-or-down vote on the Senate floor. Regardless of the battle to reach a budget deal to avoid a so-called fiscal cliff, consideration of these nominees would not take much floor time if the Senate were properly functioning.

“There is no justification for holding up final Senate action on the 19 judicial nominations that have been approved by the Senate Judiciary Committee and are pending on the Senate Executive Calendar,” said Senate Judiciary Chairman Patrick Leahy (D-Vt.) in a Nov. 30 statement. “President Obama has consistently reached across the aisle, consulted with home state senators from both parties and appointed moderate, well-qualified judicial nominees. It is time for the obstruction to end and for the Senate to complete action on these nominees so that they may serve the American people with further delay. Delay for delay’s sake is wrong and should end.”

by Jeremy Leaming

A longstanding meme is that conservatives are concerned about the makeup of the Supreme Court, while progressives, not so much. A paper released by ACS on the opening of the Court’s new term, spells out why progressives should be really concerned about the Supreme Court, if they are not already.

The paper, “Courts Matter: Justice on the Line,” notes the current high court is typically divided 5-4 along ideology on a host of matters that progressives should be concerned about, such as corporate funding of elections, abortion rights, voting rights, privacy rights and equality. The paper speculates on how a more conservative or progressive high court might address some of the nation’s most pressing legal concerns.

For example, the document says a “more conservative Supreme Court might uphold onerous restrictions on a woman’s right to choose and otherwise limit her reproductive freedom – and perhaps even overturn the landmark Roe v. Wade decision.” There are two cases decided by a conservative Supreme Court that have already revealed a desire to limit, if not overturn, Roe.

The high court’s 1992 Planned Parenthood v. Casey created a new standard for deciding when limits on reproductive freedoms pass constitutional muster. For example, waiting periods, parental consent and informed consent are no limits on women’s freedom to a medical procedure. For that matter states have also mandated that physicians give women lectures on abortion or force them to under ultrasounds to view sonograms. And in a 2007 opinion, the Court upheld as constitutional a state law banning late-term abortions.

The advancement of marriage equality might also be slowed by a more conservative Supreme Court, the paper notes. In 2003, the high court by a 6-3 vote invalidated as unconstitutional a Texas law banning sodomy. The ACS paper maintains that today Lawrence v. Texas would likely be a 5-4 opinion.

Let’s note here too that early next year, Jan. 18-19, ACS will host, along with the UCLA School of Law, the Williams Institute, the Yale Information Society, and the Program for the Study of Reproductive Justice, a conference focusing on the impact of Roe and Lawrence and contemplating the future of both equality and liberty concerns. See here for more information about the conference called “Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries.”