Judicial Nominations

  • November 3, 2016

    by Caroline Fredrickson

    Let’s project past the partisan noise and hand-wringing of the Nov. 8 election. It is never too early to take stock of judicial nominations in the post-election lame duck session of Congress. 

    Since Senators left the Capitol in September, vacant seats on the federal bench quietly keep growing. On Oct. 31, Judge Donovan Frank of the District of Minnesota retired from a full-time caseload, creating the second vacancy in one of the busiest courthouses in the nation. This seat has been designated a judicial emergency by the Administrative Office for U.S. Courts and is the second one for this District alone. Senators Amy Klobuchar (D-Minn.) and Al Franken (D-Minn.) promptly announced their process for filling these vacancies.

    Now Minnesota has only five full-time federal district court judges. When fully staffed, it has seven. This smaller bench translates into larger caseloads for remaining judges and longer wait times for anyone seeking justice. 

    For a second year in a row, this court will operate with a minimum of one vacancy. The court last year had a vacancy for six months. In a bit of good news, the Senate confirmed Judge Wilhelmina Wright, the first female African American federal judge in Minnesota, to fill the vacancy this past January.

  • October 26, 2016

    by Caroline Fredrickson

    Suddenly, in the span of just a few days, three senators broke rank with the 54-member majority who has denied any action on judicial nominations. It is too early to tell if this shift is a sideshow producing headlines in the Salt Lake Tribune and Politico or the beginning of the end of gridlock in the post-election lame duck session of Congress.

    Whatever the outcome in the coming weeks, #DoYourJob is not a strong enough hashtag to chronicle the constitutional crisis created by the senate blockade against President Obama’s 110 judicial nominations.  More than 10 percent of the federal bench is vacant. 

    To put this number in perspective, compare Obama’s vacancy rate of 10.8 percent with President George W. Bush’s 3.7 percent at this same point in his eighth year.  This is a virtual shutdown of the third branch of government as the second branch denies its constitutional duty to give “advice and consent” on nominees by the first branch. 

    Chatter about a constitutional crisis sounds overblown until you recall statements made by Senate Majority Leader Mitch McConnell (R-Ky.) and Sens. Orrin Hatch (R-Utah), Chuck Grassley (R-Iowa) and John McCain (R-Ariz.) regarding Obama’s nominee to the Supreme Court, Chief Judge Merrick Garland.

    Remember in February, barely an hour after the death of Justice Antonin Scalia, Senate Majority Leader Mitch McConnell stunned many with an historic announcement that the next president should fill the vacancy on the Court. McConnell reasoned that with a possible shift in the ideological bent of the Supreme Court the people should have a voice in the selection of the ninth justice.  This logic ignores the fact that voters do not elect Supreme Court justices.

  • October 14, 2016
    Guest Post

    by Jeff Mandell, Senior Associate at Stafford Rosenbaum LLP in Madison, Wisconsin. Jeff is also the Chair of the newly formed ACS Madison Lawyer Chapter.

    Earlier this week, Sen. Tammy Baldwin (D-Wis.) keynoted the ACS Madison Lawyer Chapter’s kick-off event. In spirited remarks and thoughtful answers to audience questions, Sen. Baldwin spoke powerfully about the stalled nomination of Chief Judge Merrick Garland to the Supreme Court, the judicial vacancy crisis more broadly and the vital need for our country to move forward: “Leaving one seat vacant prevents our highest court from resolving major legal issues. It threatens the integrity of our democracy and the functioning of our constitutional government. It puts at risk the administration of justice across the country. As Justice Kagan said recently, ‘A tie does nobody any good.’ We need nine.”

    Sen. Baldwin gave historical context for the current moment, noting “this year will mark the first time since 1864 that the Supreme Court has been without its full complement of Justices on Election Day next month.” She also expressed her disappointment and exasperation at the Senate Republican majority’s refusal to consider—or even hold a Judiciary Committee hearing on—Chief Judge Garland’s nomination. She described the obstruction as “wrong and deeply irresponsible, as well as “disrespectful to our Constitution, disrespectful to our president, disrespectful to this very qualified nominee and disrespectful to the American people.”

    She also addressed the vacant seat—by tradition designated for a Wisconsin nominee—on the U.S. Court of Appeals for the Seventh Circuit. That vacancy is the longest running opening on the federal appellate bench, having been open since January 2010. (And the vacancy has been known since six months earlier, when Judge Terence Evans, announced his intention to take senior status at the beginning of 2010.) Sen. Baldwin discussed why it took years for the Wisconsin Federal Nominating Commission to recommend potential nominees. And she detailed the procedural delays that have kept President Obama’s nomination of Madison attorney Don Schott from receiving a vote on the floor of the Senate.

  • October 7, 2016

    by Lena Zwarensteyn

    This week, the Supreme Court opened its October Term with only eight justices to hear oral arguments. In the 237 days the Court has operated at less than full capacity, the Senate Majority Leader Mitch McConnell (R-Ky.) has remained steadfast in his refusal to allow the chamber he leads the opportunity to fulfill its constitutional duty to provide “advice and consent” on President Obama’s nominee. While President Obama’s nominee to the Supreme Court, U.S. Court of Appeals for the District of Columbia Chief Judge Merrick Garland, has been patiently waiting for any signal of a public confirmation hearing, he joins a cadre of other languishing judicial nominees. The vacancy on the Supreme Court is mirrored in federal courts across the country and is reaching crisis proportions. As Professors Michael Gerhardt and Richard Painter note in their new Issue Brief, “The New Normal:  Unprecedented Judicial Obstruction and a Proposal for Change,” there are 108 current and future vacancies in our federal courts. This represents more than 10% of our federal judiciary, and the shutdown of this vital branch of government means that Americans are shut out.

    Americans seeking their day in court do so in a judicial system that is significantly overburdened and understaffed. The Senate Majority claims they have done enough, yet they have not even done the minimum to ensure that justice is administered in a fair and efficient matter. Since the Republicans took over the Senate leadership in 2015, they have only confirmed 22 Article III judicial nominees to the Courts. Compare this to other presidents who faced oppositional Senate leadership: President George W. Bush had 68 judges confirmed in his final two years in office and President Bill Clinton had 73 judges confirmed in his final two years in office.  One has to go back to the 1950s to find a remote comparison, and even then President Dwight Eisenhower had twice as many judges confirmed in his final two years (44 judges) compared to President Obama.

  • April 20, 2016
    Guest Post

    by Christopher Kang, National Director, National Council of Asian Pacific Americans

    *This post first appeared on HuffPost Politics.

    This morning, the Senate Judiciary Committee held a hearing on judicial nominations for just the second time this year.

    At this point, I’m not worried about Senate Republicans doing their job—I’m worried that they’ve forgotten what doing their job even looks like.

    Senate Republicans are not only politicizing and undermining the Supreme Court, with their refusal to even consider Chief Judge Garland’s nomination, but they are doing the same thing to lower courts as well. They are likely to damage our entire judiciary—all for political gain, so they can leave more vacancies open for President Trump to fill.

    Since January 2015, Senate Republicans have confirmed only 17 judicial nominees.

    In comparison, from January 2007 to April 2008, Senate Democrats confirmed 45 of President Bush’s judicial nominees.

    The difference is even starker when you consider the circuit courts—the level of our federal courts just below the Supreme Court.

    In fact, with respect to circuit court confirmations, Chairman Grassley has work to do if he doesn’t want the worst record in almost 120 years.

    So far, Chairman Grassley has held hearings on only two circuit court nominees—the last one was ten months ago—and he has not indicated whether he will allow any of the seven pending circuit court nominees to move forward, taking the obstructionist mantra of “No Hearing No Vote” to a whole new level.