• October 12, 2015
    Guest Post

    by Russell Wheeler, Visiting Fellow, Governance Studies, Brookings

    Federal courts are facing a toxic mix of judges creating vacancies at an usually high rate and some Republican senators exploiting Senate traditions to prevent nominations in their states. And the Senate Judiciary Committee and Republican Conference leadership have aggressively slowed down confirmation of those nominations that make it to the Senate.*

    The net effect is a sharp increase in vacant judgeships, putting additional strains on sitting judges, including those who have earned a right to a reduced workload. It mainly affects civil litigants, including small businesses, because of criminal cases’ statutory priority. In the final two years of the Reagan, Clinton and Bush two-term presidencies -- all with divided government -- vacancies decreased. That seems highly unlikely in these final two years of the Obama presidency.

    The October 5 confirmation of a district judge reawakened complaints that seven confirmations in 2015 compare poorly to the 33 confirmations at the same point in 2007, George W. Bush’s seventh year in office.

    In response, majority members of the Senate Judiciary Committee have said that the Senate, over the six-plus years of the Obama administration, has confirmed more judges than in the comparable period of the Bush administration.

    That’s true -- as of October 5, 310 Obama confirmations versus 265 Bush confirmations.

    They’ve also complained, as did Senator John Cornyn on the Senate floor on September 17 (repeating almost verbatim a July 30 floor statement by Judiciary Committee Chair Charles Grassley), that Senate Democrats confirmed 11 judges “at the end of last year.” (Actually, it was 12, on December 16, and most were unanimous.)

    Leaving 11 nominations for confirmation in 2015, said Cornyn, would have put the Senate “roughly . . . on pace for judicial nominations this year compared to 2007.”

    That’s only true with a tortured definition of “roughly on pace.” Eighteen is not “roughly” the same as 33. And those 33 confirmations in 2007 represent a 13.0 percent increase over the number on January 1, 2007.  Even moving 11 confirmations from 2014 to 2015 would have produced only a 9.9 percent increase over the January 1, 2015, number.

    More important, though, neither claim is particularly relevant. The ultimate purpose of the confirmation process is to fill vacant judgeships, not to create comparative confirmation scorecards.

  • March 6, 2013

    by Jeremy Leaming

    Another highly qualified nominee was the victim of the Senate’s obstructionists’ ongoing assault on the judiciary, which includes burdening the federal bench with high vacancies and larger caseloads.

    Today the Senate filibustered the nomination of Caitlin Halligan for a seat on the U.S. Court of Appeals for the District of Columbia, largely along a party-line vote, 54-45, with one Republican joining all the Democrats. Halligan was hailed in the legal community, liberal and conservatives, alike as greatly suited to serve in the judiciary.

    But as noted here yesterday, obstructionists continued to claim Halligan to “extreme” on constitutional issues. And they seem bent on keeping vacancies open and giving higher hurdles to confirmation for women and minority nominees in particular.

    ACS President Caroline Fredrickson blasted the action today saying, in part, that the obstructionists are undermining a pillar of democracy.

    “Our courts and citizens are seeing justice delayed because our courts cannot function effectively or efficiently without judges. It’s far past time to end this vacancy crisis and get our justice system back up and running," Fredrickson said. (See her full statement .)

    Senate Judiciary Chairman Patrick Leahy (D-Vt.) also took on the needless obstruction of judicial nominations, and some of his Republican colleagues, concluding, “They have not been fair to this fine woman.”

    President Obama called the senators' action a "pattern of obstruction," adding that his  "judicial nominees wait more than three times as long on the Senate floor to receive a vote than my predecessor's nominees." Like retired U.S. Court of Appeals for the D.C. Circuit Judge Patricia M. Wald noted in a column for The Washington Post, the president also highlighted the harm done to the D.C. circuit court, which was gone years with vacancies.

    "The effects of this obstruction take the heaviest toll on the D.C. Circuit, considered the Nation's second-highest court, which has only seven active judges and four vacancies," the president's March 6 statement reads. "Until last month, for more than forty years, the court has always had at least eight active judges and as many as twelve."

  • July 19, 2010
    As the Senate Judiciary Committee prepares to vote on the nomination of Elena Kagan to the Supreme Court, Simon Lazarus looks at the battling rhetoric over the role courts play in enforcing constitutional values. In a piece for The Huffington Post, Lazarus, public policy counsel for the National Senior Citizens Law Center (NSCLC), says Democratic lawmakers may not be pushing back swift enough against a building Republican chorus that maintains that the courts should rein in congressional action, such as its enactment of the landmark health care reform law. During the Senate Judiciary Committee's confirmation hearings, Lazarus, notes for example that Sen. Tom Coburn "railed at ‘the courts,' for not doing ‘their job in limiting our ability to go outside of original intent on what the commerce clause was supposed to be.'"

    Lazarus continued, "None too subtly, the Republicans specifically targeted the health reform law, and its allegedly ‘unprecedented' requirement that most Americans carry health insurance or pay a penalty - a prelude, Coburn warned, for mandates to ‘eat three fruits and three vegetables a day.'"

    He added:

    Other than a sentence in Judiciary Committee Chair Patrick Leahy's prepared opening statement - unreported by the press - the Democrats offered no counterpoint to the Republican's plea for judges to shrink Congressional authority or junk health care reform. Instead, the Democrats bore down on a different, more subtle strain of activism practiced by the Rehnquist and Roberts courts, generally below the radar of the press and public: tortured interpretations of statutory fine print that gut protections for consumers, employees, investors, retirees, or the environment. As they move the nomination to the Senate floor, Democrats certainly should keep up their populist critique of the Court's evisceration of the ‘pocket book' regulatory laws. But if the Republicans' new mantra goes unanswered, their vision of a tough-on-Congress federal judiciary could acquire political traction faster than the Democrats' tough-on-business vision. To begin with, their new rap could play well in Peoria. Polls indicate that bank bailouts and large deficits may, at least for the moment, have made anxiety about an ‘out of control' federal government more widespread than fear of corporate bullying.

    See Lazarus's entire article here. In addition, Lazarus recently talked with ACSblog about the legal challenges to the health care reform law. His interview, which can also be downloaded as a podcast, is available here. Lazarus is also author of an ACS Issue Brief addressing the constitutionality of the health care reform.

  • December 10, 2009

    The Senate Judiciary Committee voted to advance three of President Obama's judicial nominations. The Committee approved the judicial nominations of Judge Denny Chin (left) to the U.S. Court of Appeals for the Second Circuit, Rosanna Malouf Peterson to the U.S. District Court for the Eastern District of Washington and William M. Conley to the U.S. District Court for the Western District of Wisconsin. The nominations await confirmation by the full Senate.

    Earlier in the week, Senate Judiciary Committee Chairman Patrick Leahy urged the Senate to confirm dozens of judicial and executive branch nominations being held up by Republicans. Leahy noted that nine nominations for federal courts and several nominations for critical leadership positions in the Department of Justice await Senate confirmation. "This year we have witnessed unprecedented delays in the consideration of qualified and noncontroversial nominations," Leahy said in a statement. "We have had to waste weeks seeking time agreements in order to consider nominations that were confirmed unanimously. I hope that instead of withholding consent and threatening filibusters of President Obama's judicial nominees, Senate Republicans will treat the nominees of President Obama fairly." 

    [image via Mac Ambo]

  • August 7, 2009

    Professor Sherrilyn Ifill, following the ACS panel discussion on diversity and the federal courts, talked with ACSblog about why diverse backgrounds are important to judicial decision-making. Beyond keeping public confidence in the courts, Ifill, a professor at the University of Maryland School of Law, said judicial decision-making as a whole is improved by judges "who represent and are reflective of the larger society...."

    Watch her interview below or download a podcast here.