Other courts

  • July 2, 2013

    by Jeremy Leaming

    Senate Republicans’ agenda of delaying or scuttling judicial nominations has had a particularly corrosive impact on the U.S. District Courts where there are currently 65 vacancies. A July 2 report from the Brennan Center for Justice reveals the large number of vacancies has stayed consistent for five consecutive years for the first time in 20 years.

    Brennan Center Counsel Alicia Bannon in a statement about the report said, “Our trial courts are in trouble. As seats remain unfilled, millions of Americans who rely on district courts are being denied the justice they deserve. District courts can no longer wait. The president and the Senate must find a way to fill these crucial seats. The report, authored by Bannon, also finds that “average caseload in 2009-2012 was 13 percent higher than the average for the preceding four years. Had all vacancies been filled between 2009 and 2012, judges would have had an average of 42 fewer pending cases each year.”

    The larger caseloads are hampering the ability of district courts nationwide to dispense justice, but are having, the report says, an even greater burden on districts where judicial emergencies exist. “Analysis shows that judicial emergencies – a designation of districts with an acute need for judges – have been higher in 2010-2012 than at any other point since 2002,” the Brennan Center notes.

    The report cites several factors that “likely account for the unusually high and sustained level of district court vacancies since 2009. District courts experienced an atypically large number of retirements during the first three years of the Obama presidency, leading to a surge in the number open seats, while at the same time, fewer total district court nominees were confirmed during President Obama’s first term than in other recent administrations. Nominees also faced record wait times from nomination to confirmation in the Senate as compared to other recent administrations, and the President trailed his predecessors with respect to the number of judges nominated during his first three years in office. Finally, many home state senators have been slow to recommend nominees to the President, particularly in states with two Republican senators, which has delayed the process of identifying the nominees.”

    Other reports have shown that Obama has long since picked up the pace of putting forth nominees, but Senate Republicans have not altered their agenda of obstruction. Republicans led by Sen. Mitch McConnell (R-Ky.) have not only continued to slow-walk the president’s judicial nominations, they are holding up his nominations to the Environmental Protection Agency, the Department of Labor, the Consumer Financial Protection Bureau, and nominations to the five-member National Labor Relations Board. Sen. Chuck Grassley (R-Iowa) has even pushed a measure to cut the number of judgeships on the powerful U.S. Court of Appeals for the District of Columbia Circuit.  

  • June 24, 2013

    by Jeremy Leaming

    Republican obstructionists in the Senate have strived to hobble or make wholly inoperative the National Labor Relations Board, which is charged with protecting the rights of workers, including the right to form unions and engage in collective bargaining. That effort got a boost by the rightward leaning U.S. Court of Appeals for the District of Columbia Circuit, which ruled earlier this year that President Obama’s recess appointments to the five-member board were unconstitutional.

    Today, the U.S. Supreme Court, an increasingly pro-business Court itself, decided to wade into the issue and determine whether the D.C. Circuit got it right in the case, National Labor Relations Board v. Noel Canning. “The specific issue is the scope of the Constitution’s grant of presidential power to put an official temporarily into office without Senate approval – a power that arises when the Senate is not on hand to review that appointment,” writes SCOTUSblog’s Lyle Denniston. “Answering that question could require the Court to define when the Senate, in a legal sense, goes into recess.”

    The D.C. Circuit’s opinion in January found that the president ran afoul of Article II, Section 2, which grants the executive the “power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” For more than a hundred years presidents have made recess appointments to fill executive branch and judicial vacancies that Congress has refused to provide advice and consent on. But the D.C. Circuit panel, made up of Republican appointees, narrowly defined when Congress was in recess, thereby invalidating Obama's recess appointments.

    The president, however, argued that the Senate was bent on blocking his nominations to the NLRB and that it was long past time to make the agency operational. Not surprisingly a group of Republicans lodged a brief with the high court calling on it to let the D.C. Circuit opinion stand.

    The Constitutional Accountability Center, however, lodged a brief urging the justices to take the case and reverse. The CAC’s brief says the D.C. Circuit opinion greatly weakened the recess appointments power by claiming it can only be used “during recesses that occur between enumerated sessions of Congress, and not during any intra-session break.”

    Denniston notes that while the justices may focus on the constitutional questions raised in the case, “the outcome has real potential for giving either the Senate of the White House real tactical advantages in the ongoing confirmation wars. It could give a resistant Senate a chance to nearly take away the president’s recess appointment authority, or it could give the White House a way to get around filibuster-driven obstruction of nominees.”

    As Sen. Elizabeth Warren (D-Mass.) noted at the 2013 ACS National Convention, the Supreme Court has grown increasingly friendly to big business concerns, with the Chamber of Commerce continuing to rack up wins before the high court. The Chamber and other business interests will surely be pushing for a Supreme Court opinion that would narrow the scope of the president’s recess appointments power, especially since the case involves a Board it views as a hurdle to their interests.

  • June 18, 2013

    by Jeremy Leaming

    As some Senate Republicans continue to argue for removal of judgeships from the powerful U.S. Court of Appeals for the District of Columbia Circuit, Sen. Judiciary Chairman Patrick Leahy (D-Vt.) is pushing forward for consideration of President Obama’s recent nominations to fill three vacancies on the Court.

    Sen. Leahy announced yesterday that he is planning for a July 10 hearing before the Committee to consider one of the president’s nominees Patricia Ann Millett, a longtime appellate attorney who has earned the ABA’s highest rating. In announcing the hearing, Leahy took on Republicans’ claims that the D.C. Circuit has a light caseload and that the three current vacancies do not need to be filled. Sen. Chuck Grassley (R-Iowa) has introduced a bill to strip judgeships from the D.C. Circuit and move them to other federal appeals court circuits. As the Constitutional Accountability Center has noted, Grassley’s measure has nothing to do with careful restructuring of the federal appeals court bench, and everything to do with obstructionism.

    Leahy’s June 17 statement noted that some of the same Republicans now calling for judgeships to be stripped from the D.C. Circuit argued during George W. Bush’s administration the Circuit “should have 11 judgeships” and they voted to confirm his nominees for the “ninth, tenth, and eleventh seats ….” Leahy then ticked off a number of judicial nominations to other federal appeals courts that Republicans slow-walked, showing no concern about caseloads for those courts.

    “The American people are not fooled,” Leahy said. “Senate Republicans are playing by different rules. In the past 30 years, Republican presidents have appointed 15 of the last 19 judges named to the D.C. Circuit. Now that these three vacancies exist during a Democratic presidency, Senate Republicans are trying to use legislation to lock in their partisan advantage.”

    That advantage has served the interests of the Republican Party. As the D.C. Circuit is currently situated, it has a decisively right-wing tilt and has issued opinions harmful to workers’ rights, the environment and one widely panned opinion on the president’s power to use recess appointments to fill judicial and executive branch vacancies. That opinion, in Noel Canning v. NLRB, has been appealed by the administration.

  • June 13, 2013

    by Jeremy Leaming

    The misconduct complaint lodged against federal appeals court Judge Edith H. Jones is now pending before the powerful U.S. Court of Appeals for the District of Columbia Circuit, reports The Times-Picayune.

    A coalition of civil liberties groups, including the Austin NAACP and the Texas Civil Rights Project, recently filed a complaint against Jones, who is based in Houston and a member of the U.S. Court of Appeals for the Fifth Circuit, alleging she made racist comments during a Federalist Society event earlier this year. Affidavits in the complaint, said that Judge Jones stated that African-Americans and Latinos are predisposed to violence. According to other affidavits she allegedly said, “Mexicans would prefer to be on death row in the United States than in prison in Mexico.”

    Allegedly Jones (pictured) also said cited her religious beliefs in handling death penalty sentences. According to an affidavit, the judge allegedly said that sentencing a person to death gives them the time and opportunity to reconcile with God. In this post, ThinkProgress centers on some of the judge’s wobbly opinion in a sexual harassment lawsuit and erratic behavior on the bench.

    The Fifth Circuit’s jurisdiction includes Louisiana, Mississippi and Texas.

    After news of the complaint surfaced, U.S. Rep. Cedric Richmond (D-La.) said, “The alleged statements, if true, demonstrate personal racial and religious bias as well as questionable legal analysis. These biases are incredibly inappropriate for a sitting jurist at any level, let alone a former chief judge on one of the highest level Article III Courts of Appeal,” TPM reported.

    The Judicial Code of Conduct defines misconduct, in part, as “discriminating against litigants or attorneys on account of race, ethnicity, sex, or other legally protected attribute” or “engaging in partisan political activity or making inappropriately partisan statements ….”

  • June 11, 2013
    Guest Post

    by Sam Kleiner and Dan Sheehan. Kleiner and Sheehan are students at Yale Law School

    In the upcoming fight to confirm judges for the D.C. Circuit, Republicans are going to try to avoid a discussion of the incredible qualifications of the three nominees and instead claim that we don’t need the judgeships at all. Sen. Chuck Grassley (R-Iowa) has introduced a Court Efficiency Act which seeks to transfer three of the eleven judgeships out of the D.C. Circuit because, he argues, they just aren’t busy enough. President Obama, in his Rose Garden address, responded that the Judicial Conference of the United States, chaired by Supreme Court Chief Justice John Roberts, has supported maintaining the level of judgeships at the D.C. Circuit.

    Grassley’s argument is, at best, disingenuous. The D.C. Circuit plays a crucial role in supervising the administrative state with its unique jurisdictional focus on claims arising from the administrative agencies. Throughout the Obama administration, Republicans have focused on criticizing the growth of the administrative state. In his dissent this term in FCC v Arlington, Justice Roberts argued that “the Framers could hardly have envisioned today’s vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities.” With their critique of the growth of the administrative state, it is disingenuous for conservatives to now flip and say that the appeals court that is tasked with the bulk of administrative law doesn’t have enough work.

    While it is true that the D.C. Circuit hears fewer cases than other appeals courts, as Grassley likes to point out, this argument misses the point entirely. As the Chief Judge of the D.C. Circuit, Roberts delivered a lecture in 2005 entitled “What Makes the D.C. Circuit Different?” His answer: the type of case they hear.“One-third of the D.C. Circuit appeals are from agency decisions. That figureis less than twenty percent nationwide,” he noted. With the legislation creating an array of administrative agencies vesting power for review explicitly in the D.C. Circuit, Roberts noted, “Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency’s decision is vested in the D.C. Circuit.”

    While Grassley complains about the limited workload of the D.C. Circuit, an examination of the statistics from the Judicial Conference confirms that his argument is false.