Federal judicial selection

  • May 21, 2012

    by Nicole Flatow

    The U.S. Court of Appeals for the Ninth Circuit holds the title of the nation's busiest appeals court, with twice the caseload of the next busiest circuit.

    While the West Coast court experienced some relief when Jacqueline Nguyen of Los Angeles was confirmed to a Ninth Circuit judgeship just a few weeks ago, three other vacant seats remain, all of which are considered judicial emergencies by the Administrative Office of the U.S. Courts.

    Paul Watford, nominated in October with broad bipartisan support, would fill one of these seats. But senators have blocked a simple up-or-down vote on his nomination.

    On Thursday, Senate Majority Leader Harry Reid moved to force a vote on Watford’s nomination. The Senate will vote on the motion to invoke cloture Monday, deciding whether to prevent a simple yes-or-no vote on yet another qualified, consensus nominee.

    Cloture has historically been considered an extraordinary measure, particularly when it comes to judicial nominations, which the Senate once processed quickly as a matter of course. But since President Obama took office, an exasperated Reid has resorted to the measure 27 times.

  • May 7, 2012

    by Nicole Flatow

    Some 150 legal experts, concerned citizens and community leaders from 27 states are meeting with White House officials today about the judicial vacancy crisis on America’s federal courts. Nationwide, nearly one out of every ten federal judgeships remains vacant, and more than 250 million Americans live in a community with a courtroom vacancy.

    Today marks the end of a Senate deal to schedule votes on 14 nominees. Senate leaders reached the limited agreement after an exasperated Senate Majority Leader Harry Reid filed motions to force votes on 17 nominees.

    After the White House meeting, the community leaders will visit the offices of key senators to urge them to end the delays that have plagued the Senate confirmation process since the beginning of the Obama presidency. 

    “The increasing influence of partisan politics on the judicial selection process harms no one more than the average American who is left waiting for her day in court,” said Alistair Elizabeth Newbern, a clinical professor at Vanderbilt University Law School who leads the American Constitution Society’s Tennessee Lawyer Chapter and is visiting the White House today. “Above all, justice must be available. Every day that a court seat remains vacant makes it less so for the people who need it most.”

    A coalition of 29 national public interest groups issued a statement today emphasizing the urgency of judicial nominations.

    “Regardless of where you live or what issues you care about, all Americans deserve a judiciary that works for them," the statement says. "Today’s White House briefing with community leaders, legal experts and advocates for an effective judiciary is an unequivocal statement about that priority."

    The statement continues:

  • May 4, 2012

    by Samantha Berkovits

    Some 150 lawyers and advocates from 27 states will meet with officials at the White House on Monday to discuss the judicial vacancy crisis. Monday marks the official end of a Senate deal to schedule votes on 14 nominees, wrapping up with votes on the nominations of U.S. District Judge Jacqueline Nguyen to the 9th U.S. Circuit Court of Appeals, Kristine Gerhard Baker to be United States District Judge for the Eastern District of Arkansas and John Lee to be United States District Judge for the Northern District of Illinois.

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    All three nominations were approved by the Senate Judiciary Committee months ago and have been stalled since. After the Monday votes, there will still be 16 nominees waiting for floor votes, many of whom were approved by the Senate Judiciary Committee last year.

    Sen. Tom Coburn (R-Okla.) has finally given consent for the Senate Judiciary Committee to hold hearings on two Oklahoma judicial nominees, Robert E. Bacharach and John Dowdell. Bacharach, a federal judge magistrate ranked unanimously well qualified by the American Bar Association, has been nominated for the U.S. Court of Appeals for the 10th Circuit, the seat has remained vacant for two years as the White House and Oklahoma’s Republican senators failed to find a nominee they could agree on. Dowdell is Obama’s second nominee for a U.S. District Court vacancy in Tulsa after Sens. Coburn and Inhofe refused to give consent to his first pick in December.

  • April 27, 2012

    The Senate confirmed Gregg Costa and David Guaderrama to fill judicial emergency vacancies in the U.S. District Courts for the Southern and Western Districts of Texas. “While this process took far too long and there remain too many unfilled judicial vacancies in Texas, this vote represents modest progress,” said Rep. Lloyd Doggett, (D-TX). There are still four U.S District Court vacancies in Texas.

    In addition, the Senate approved Brian Wimes for the Eastern and Western districts of Missouri by a vote of 91-1. All three votes were part of the deal between Senate Democrats and Republicans to confirm 14 judges by May 7. Sen. Mike Lee (R-UT) was the sole nay vote.

  • April 24, 2012
    Guest Post

    By Adam Winkler, a constitutional law professor at UCLA School of Law


    The age of judicial activism - err, I mean "judicial engagement" - is upon us. Having realized that they don't always win with voters, leading conservatives are abandoning their traditional emphasis on judicial restraint and respect for the decisions of democratically elected officials. After years of berating liberal judges for overturning laws in the name of controversial constitutional principles, conservatives are now embracing the notion of an active, "engaged" judiciary. Only they want one that aggressively protects those rights conservatives prefer: property rights, rights of religious expression, the liberty of contract, the right not to buy broccoli - regardless of decades of established case law.

    For evidence of this trend, one need not look further than startling concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, who is often mentioned as a potential Supreme Court nominee in a Republican administration, used her opinion to audition for a leadership role in this new movement. The time has come, she wrote, to end the pernicious practice of allowing legislatures to regulate the economy. "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s." The proof? The "Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote the public welfare."

    Besides Brown’s Bizarro world premises in which things like consumer protection laws harm consumers, her ode to the Lochner era reminds us of the importance of judicial appointments. For decades, Republican presidents have used the lower federal courts as a farm team for the Supreme Court, smartly filling positions with potential stars to see how they perform. This is a smart strategy, though one Democrats haven’t followed. Instead, Democratic presidents have tended to name competent, diverse people who aren’t likely to be controversial. But in the current political climate, even these clear consensus nominees are held up in the Senate, leaving the federal courts with a critical number of vacancies and a troubling imbalance in our courts. To counter the newly “engaged” judicial conservatives like Brown, legal liberals need to be fighting for judges, particularly those judges with the intellectual fortitude to go toe-to-toe with the leading lights of conservative constitutionalism. Respect for our Constitution and settled precedent demands nothing less.