Senate obstructionism

  • 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.
  • August 8, 2013

    by Jeremy Leaming

    Judge Patricia Wald, the first woman appointed to the U.S. Court of Appeals for the District of Columbia Circuit, will be awarded the Medal of Freedom by President Obama later this year.

    Wald, a former ACS Board member, is among 16 recipients the White House announced today. Of Wald, the president said:

    Patricia Wald is one of the most respected appellate judges of her generation.  After graduating as 1 of only 11 women in her Yale University Law School class, she became the first woman appointed to the United States Circuit Court of Appeals for the District of Columbia, and served as Chief Judge from 1986-1991.  She later served on the International Criminal Tribunal in The Hague.  Ms. Wald currently serves on the Privacy and Civil Liberties Oversight Board. 

    Wald retired from the bench in 1999, but as Obama noted hardly became idle. She was also honored in 2008 by Legal Timesas a ‘Visionary’ for breaking through barriers during a long career in law,” its blog notes.

    This year Wald has been instrumental in pushing back against Senate Republicans led by Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) who have sought to prevent the president from filling vacancies on the D.C. Circuit, considered one of the most powerful federal appeals court circuits because of myriad cases it hears regarding constitutional concerns and challenges to federal regulation. Grassley has introduced a bill that would remove three judgeships from the 11-member D.C. Circuit under the guise that its caseload is not as burdensome as others.

    Many, such as the Constitutional Accountability Center’s Judith Schaeffer, have noted the obviously political effort to keep a Democratic president from shaping the make-up of the D.C. Circuit, which currently has a distinctly conservative bent. In a recent post for CAC’s Text & History blog, Schaeffer provides plenty of documentation undermining Grassley’s argument that judgeships should be yanked from the D.C. Circuit. She notes that an April letter to the Judiciary Committee from the Judicial Conference of the United States providing assessments of staffing needs of the federal bench did not “contain any recommendation to eliminate or not fill seats on the D.C. Circuit.”

  • July 17, 2013

    by Jeremy Leaming

    On the heels of reaching a limited deal in the Senate to move on seven executive branch nominations, the Congressional Black Caucus (CBC) urged the Senate to stop slow-walking and blocking nominations of African-Americans to the federal bench. 

    Although President Obama has made significant strides in diversifying the federal bench, too many of his minority nominees have faced delays or have seen their nominations scuttled. And a 2010 study of the Administrative Office of the U.S. Courts showed the federal bench is still dominated by men.

    Specifically the representatives who participated in a press briefing this morning hosted by the CBC took aim at Sen. Marco Rubio (R-Fla.) for delaying the nominations of Brian Davis to the U.S. District Court for the Middle District and William L. Thomas for the U.S. District Court for  the District of the Southern District, who is openly gay.

    Rep. Corrine Brown (D-Fla.), said, “I am thoroughly frustrated that Marco Rubio is continuing to hold up the nomination of a stellar judge from Jacksonville. Judge Brian J. Davis was first nominated by President Obama last Februaryto serve on the United States District Court for the Middle District of Florida.”

    The Tampa Bay Times reported that both Davis and Thomas were approved by Florida’s Judicial Nominating Commission. According to the newspaper, Rubio and Senate Judiciary Committee Ranking Member Chuck Grassley are troubled by comments made by Davis a decade ago about the resignation of Joycelyn Elders, the U.S. surgeon general during the Clinton administration.

    Congresswoman Eleanor Holmes Norton (D-D.C.) noted that it is not just the Florida nominees that are being held up, saying the picture is large and disconcerting.

    A working group of the CBC chaired by Norton found that “while the president has kept pace and often surpassed prior presidents in black judicial appointments, a disproportionate number of African-American nominees have been held up or slowed. Almost one-third (10 of 33) of the judicial nominees currently pending in the Senate are African Americans.”

    She urged the Senate to stop delaying these nominees, concluding, “As our country has become one of the most diverse in the world, a judiciary that reflects that diversity is virtually mandatory. Respectfor the rule of law requires respect for the fairness of the judiciary. The Senate establishes the threshold of fairness by confirming a judiciary that represents the diversity of the citizenry whose cases federal judges are called upon to decide. The Congressional Black Caucus will not quietly allow highly-qualified African American judges to be sidelined without hearings or to be held up on the Senate floor after being voted out of the committee.”

    For more on the vacancy crisis on the federal bench, see JudicialNominations.org.