Editorials and Opinion
PD Editorial: Supreme Court held hostage: Day 70 (Press Democrat [CA] , 05/25/16)
"The Republican-controlled Senate is threatening to take the Capitol to historic depths of partisanship by refusing to take action, leaving the Supreme Court locked in a potential 4-4 split well into its next term.
Some say it’s just politics. But it’s worse than that. It’s a dereliction of duty, one the comes without regard for the potential long-term impacts on the nation’s judicial system.
The 70 days is already longer that the length of time taken to vet Chief Justice John Roberts,... Perhaps the greatest injustice is to Garland himself who is more than qualified for the position and would most likely receive bipartisan support — as he did when overwhelmingly confirmed for the D.C. Circuit court in 1997 — if and when nomination hearings are ever scheduled.... the American public continues to wait for the U.S. Senate do its job. So far the wait has been 70 days.
If the Senate acts now, it would still have plenty of time to have Garland vetted and confirmed before the Supreme Court begins its new term in October."
The "Thurmond Rule" and other advice and consent myths (Brookings, 05/25/16)
Russell Wheeler: "Grassley’s description of the paucity, since 2000, of presidential election year confirmations after the summer recesses obscures the amount of election-year confirmations prior to the recesses. The Senate confirmed from four to eight circuit judges in each of those four years (2000, 2004, 2008, and 2012), compared to only one so far in 2016. And it confirmed, before the recesses in those years, 27, 24, 14, and 28 district judges, compared to only six so far in 2016. (And, any Thurmond “rule” notwithstanding, in those four years the Senate confirmed 36 district judges after the recesses—not to mention ten post-August circuit confirmations in 1984, 1988, and 1992, during and immediately following Thurmond’s chairmanship.).... Those examples should motivate the full Senate to consider at least the 21 district and one circuit nominees who have had hearings. Doing so could help close the yawning gap between the 114th Senate’s record of 18 total confirmations and those of its recent predecessors—72 in 1999-2000 when Republicans controlled the Senate and 68 in 2007-08, when Democrats did.... McConnell’s comparison is akin to saying that Congress treated a hypothetical President X fairly by providing slightly more hurricane relief funds than it provided President Y, even though President X’s term saw twice as many hurricanes as did President Y’s.
The judicial analogy to natural emergencies is vacancies.... The question, in other words, is not fairness to a president but fairness to litigants and judges. Section 2, Article 2 does not terminate the Senate’s “advice and consent” function once it confirms the same number of nominees as those of a prior president, or, despite any “Thurmond Rule,” once it leaves town in July for a month and a half of party conventions and presidential election year campaigning."
CAN SPLIT GOVERNMENT WORK? (Moderate Voice, 05/25/16)
ROBERT A. LEVINE, TMV Columnist: "The Senate’s refusal to confirm Obama’s candidate to replace Antonin Scalia on the Supreme Court, Merrick Garland, a centrist judge with impeccable credentials, is another example of Republican partisanship, ignoring past precedent. ... As bad as the rejection of Garland by Republicans has been their obstructionism in filling federal court appointments recommended by Obama, causing difficulties in the courts’ ability to function, with heavy caseloads for justices and long delays in handling cases. ... Republican Senators blocked Obama’s attempt to fill vacancies on regional federal courts of appeal. The senators refused to approve of candidates for judgeships in their states ahead of formal nomination"
Republican obstruction creates new bamboo ceiling for Asian American judicial nominees (Huffington Post, 05/24/16)
Christopher Kang, National Director, NCAPA: "President Obama has appointed more AAPI federal judges than all presidents in history combined, and the nine AAPI women he has appointed is even more remarkable considering there were only two prior to 2009.
While this is important progress, Senate Republicans are obstructing any further advancement by delaying consideration of President Obama’s five distinguished AAPI nominees—all women—to lifetime federal judgeships.... Judge Lucy Koh has been nominated for the U.S. Court of Appeals for the Ninth Circuit ... She would be just the second AAPI woman to serve as a circuit judge in our nation’s history. In June 2010, the Senate unanimously confirmed her to serve as a district judge ... by a vote of 90-0, but Judiciary Committee Chairman Chuck Grassley has not yet scheduled a hearing on her nomination.... Since Republicans took control of the Senate in January 2015, judicial vacancies have more than doubled, from 43 to 87..... empty courtrooms mean that everyone must needlessly wait .... The Senate has confirmed only 18 judicial nominees over the past 17 months—a pace so slow it hasn’t been seen in decades—while 55 nominees remain pending, subject to Republican obstruction and delay."
Benched! The “Thurmond Rule,” and other Republican excuses to avoid doing work (Justice Watch, 05/24/16)
"An extraordinary idea surfaced at the Senate Judiciary Committee’s weekly business meeting last Thursday. Senator Diane Feinstein, a member of the committee since 1993, proposed that senators stop debating the meaning of the so-called Thurmond Rule—which we’ve previously described as “a figment of the partisan imagination invoked to give an air of legitimacy to . . . pure obstruction”—and that instead members of the committee “just sit down and do our job” to fairly consider and process judicial nominees.... Since the Republicans took over in 2015, the Senate has confirmed a paltry 18 judges, putting it on pace for the fewest judicial confirmations in more than a half-century. Only two of the 18 confirmed are circuit court judges, a number that, if it holds, would be the lowest since the 55th congress in 1897-1898. And in the Judiciary Committee, Chairman Chuck Grassley is refusing to hold a confirmation hearing for a Supreme Court nominee who has already been pending for 70 days, to say nothing of the 29 lower court nominees who still need a hearing.... With the Republicans in charge, judicial vacancies have nearly doubled from 43 to 81, and judicial emergencies—the official designation for courts unable to keep pace with existing caseloads—have jumped from 12 to 29. ... at this point in the last Congress of President Bush’s administration, Senate Democrats had worked to reduce vacancies from 56 to 46 and judicial emergencies from 25 to 16."
There’s plenty of time for Merrick Garland hearings, no excuse for GOP foot-dragging (Bangor Daily News [ME], 05/23/16)
Sherry Huber & Roger Berle, Republican members of Board of Directors, Maine Conservation Voters: "the blocking of Garland’s nomination is only the most recent and high-profile example of obstruction that has been taking place for years and left our federal courts without adequate numbers of judges to ensure the American people can have their day in court. As of today there are a total of 81 vacant judgeships across the country, with 29 of those unfilled positions resulting in workloads so high as to be declared a judicial emergency. Of the 57 nominees put forward by the president, 19 await a vote by the full Senate while 38 languish in the Senate Judiciary Committee.
There’s no excuse for that kind of foot-dragging. We need our federal courts to function and to reach decisions on the host of issues brought before them that shape our daily lives. Important issues, from civil and human rights to voting and campaign finance laws to environmental issues such as the EPA’s effort to control greenhouse gas emissions under the Clean Air Act ... Refusing to hold hearings and take an up or down vote on nominees is a dereliction of duty and an insult to the American people."
Senator Burr Causes 10 Year Judicial Vacancy (Fayetteville Observer [NC] , 05/23/16)
Column by Gailya Paliga, president, N.C. National Organization for Women: "Fayetteville's own extremely well qualified former N.C. Supreme Court justice was nominated on April 28 to fill a longtime vacancy on the federal court bench in Eastern North Carolina. ... I was shocked to read that Sen. Richard Burr vowed to block her the same day that she was nominated.... Sen. Burr refuses to do the U.S. Senate's job of advice and consent. ... Burr has caused and continues to cause the federal courts in North Carolina to be short-handed. Burr needs to fulfill his own constitutional responsibility and let the Senate do its job to fill this inexcusable 10-year judicial vacancy."
Editorial, 5/22: High court limping along (Lincoln Journal Star [NE], 05/22/16)
"The U.S. Supreme Court’s non-ruling on the contraceptive mandate shows how functional decay in the legislative branch has now spread to the judicial branch.... “The court expresses no view on the merits of the cases,” the justices said in an unusual, unsigned opinion.
It’s difficult to imagine this outcome if the court was operating at full strength with nine justices.
But Republicans in the Senate have refused to even hold hearings on President Barack Obama’s nominee, Judge Merrick Merrick Garland, to replace Justice Antonin Scalia.
This leaves the court with a 4-4 split on some hot-button topics.... But the high court’s most important role under the U.S. Constitution is to rule with finality on important legal questions.
The refusal by the U.S. Senate to fulfill its responsibility leaves the nation’s high court hamstrung. The non-ruling on religious freedom shows the high court’s justices are doing the best they can, but uncertainty and delay are growing."
EDITORIAL: In our opinion: Divided 8-judge Supreme Court not in America's best interest (Deseret News [UT] , 05/21/16)
"[A] Supreme Court with only eight justices has the potential to create a great deal of problems going forward.... The result is a situation where such deadlocks are making the Supreme Court increasingly unable to adequately fulfill its constitutional responsibilities.
This is no accident. Republicans in Congress have made no secret of their desire to delay filling the court vacancy until a new president is elected. While the rationale for doing so is hotly debated, in practical terms, there’s an awful lot of uncertainty inherent to that approach.... But there is a principle at stake here that transcends partisan politics. The legislative, executive, and judicial branches of the federal government were intended to provide a system of checks and balances, so it’s more than a little unsettling to see one branch of government so contemptuous of another that they’re willing to effectively sideline the judiciary for an entire year. Surely Congress has a responsibility to at least give the president’s nominee a fair hearing. The Supreme Court may not always issue decisions with which Congress, republicans, or even this newspaper will agree, but the court's constitutional authority deserves more respect than it is currently being afforded."
Tulsa World Editorial: Supreme Court nondecision on 'Obamacare' points to the need for Senate action on the Garland nomination (Tulsa World [OK], 05/20/16)
"With the death of Justice Antonin Scalia in February and the refusal of the Republican U.S. Senate majority to take up President Barack Obama’s nomination of Merrick Garland, the court is moving ahead with eight members, which it appears is not enough to make a decision on this closely watched case.... No one wins when the Supreme Court is deadlocked, least of all the nation.
The Senate needs to do its job: Consider the Garland nomination. Reject him if he isn’t acceptable. Confirm him if he is. But don’t leave the Supreme Court in limbo, short one justice and no path to a resolution."
Decoding the Trump Eleven for the Supreme Court: By the editorial board of The Anniston Star (Anniston Star [AL] , 05/20/16)
"Scalia died 11 months before the end of President Barack Obama’s second term. The president nominated a replacement — federal Judge Merrick B. Garland — not long after. During a typical Senate confirmation process, the Senate would consider Garland over the spring and summer. If his nomination was approved by a majority of senators, Garland could be seated on the Supreme Court well before the presidential election on Nov. 8.
This is not a typical Senate confirmation process, however. Within hours of Scalia’s death, the Senate’s Republican majority declared that no Obama nominee would be considered in the president’s final year in the White House. So far, they’ve stuck to that commitment. Garland can’t get a hearing. Garland can’t receive a vote on his nomination. Senate Republicans have gone on strike.... It likely doesn’t play as well with the rest of the nation who see this episode example of a do-nothing Congress.
Thanks to Trump’s list, we now have a reminder that there is already one name placed before senators who should perform their constitutional duty and either confirm or reject his nomination."
Editorial: Trump’s would-be justices (Detroit News [MI], 05/19/16)
"President Barack Obama nominated Appeals Court Judge Merrick Garland to replace Scalia.
Garland is a well-respected centrist who should, by the way, get a hearing from the Senate."
The Star's Editorial: GOP senators should stop dithering on hearing for Merrick Garland as Supreme Court justice (Kansas City Star, 05/19/16)
"Senate Republicans should be kicking themselves for taking such a hard line on filling the U.S. Supreme Court vacancy left by the death of conservative Justice Antonin Scalia.
Immediately after Scalia’s death in February, Republicans proclaimed they would not give any nominee of President Barack Obama the dignity of a hearing, let alone a vote.
Their stark message: To hell with the Constitution, separation of powers and any semblance of cooperation.
Properly undeterred, Obama nominated Merrick Garland, a highly qualified, moderate judge on the U.S. Court of Appeals for the District of Columbia and former prosecutor.... The hissy fits continued anyway. Republican senators, including Pat Roberts and Jerry Moran of Kansas and Roy Blunt of Missouri, still refuse to act.
But that position is a lot less attractive now ... In opposing Garland, Republicans initially focused on the specious argument that the “people” who elect the next president should be rewarded with the choice, not those who elected the current president.
Public opinion is shifting in favor of a Senate hearing. Twitter is full of #doyourjob jabs at GOP senators. And a majority of Americans now favors holding a hearing on Garland, according to recent polls.
But Republican leaders continue to thumb their noses at Obama, Garland, the public and the Constitution.
Roberts, Moran and Blunt should step up, be leaders of their frazzled party and call for a vote."
The Record: Court punts [EDITORIAL] (Record [NJ] , 05/18/16)
"The court's 8-0 decision to send a contraception case linked to the Affordable Care Act back to the lower courts was yet more evidence that the court needs a full complement of nine justices; it has had only eight since the death in February of Justice Antonin Scalia.... the court cannot function properly with only eight justices. President Obama nominated Merrick Garland to the court shortly after Scalia's death, but the Republican-controlled Senate has refused to consider the nomination. The Senate's failure to do its job is hurting the nation's highest court. If senators don't like Garland, they can vote against him. But he deserves a hearing and a vote."
DOUG ROSS: Garland issue is more than decoration (Northwest Indiana Times, 05/18/16)
Column by Politics/History Editor Doug Ross: "U.S. Sens. Dan Coats and Joe Donnelly are pleased the Senate Judiciary Committee is holding a confirmation hearing today on Winfield Ong, who was nominated to serve as federal judge in the U.S. District Court for southern Indiana. It revives the discussion of Merrick Garland’s nomination to the U.S. Supreme Court.... It’s worth noting if Coats votes on Ong’s nomination, he won’t be waiting for his successor to make that decision."
EDITORIAL: Szeliga's tepid statement on SCOTUS nominee (Frederick News-Post [MD], 05/18/16)
"[T]his isn’t “partisan politics.” It’s party — singular — politics. ... it’s the Republicans in Congress manufacturing this controversy, so terrified they are of a “liberal” majority in the Supreme Court. It wasn’t Obama who “politicized a Supreme Court appointment.” He acted quickly after the death of Justice Antonin Scalia to fill the vacancy. By refusing to meet with his nominee or hold confirmation hearings, it is GOP senators quaffing the political Kool-Aid here. ... Obama has every right to nominate any candidate he sees fit for the open SCOTUS seat, ...his nomination is in keeping with the Constitution, and ... [the Senate should] hold an up-or-down vote on Garland — a chief judge of the U.S. Court of Appeals with an impeccable record, stellar reputation and moderate credentials. In other words, a candidate who’d be quickly appointed had he been nominated by any president other than Obama."
EDITORIAL: The Crippled Supreme Court (New York Times, 05/17/16)
"Every day that passes without a ninth justice undermines the Supreme Court’s ability to function, and leaves millions of Americans waiting for justice or clarity as major legal questions are unresolved.... Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench."
Gailya Paliga: Time to fill federal court judge position (News & Observer [NC], 05/17/16)
Gailya Paliga, President, N.C. National Organization for Women, Letter to the Editor: "I was impressed to see that one of our own extremely well-qualified former N.C. Supreme Court justices was nominated April 28 to fill a longtime vacancy on the federal court bench in Eastern North Carolina.
Patricia Timmons-Goodson served as an associate justice ... I was appalled to read that Sen. Richard Burr vowed to block her the same day.... Burr has actually blocked two women from this position since 2013.
Burr has caused and continues to cause the federal courts in North Carolina to be short-handed. Burr needs to fulfill his constitutional responsibility and fill this longtime vacancy at judicial emergency status."
Editorial: Toomey and the politics of obstruction (Pocono Record [PA] , 05/17/16)
"Clearly, Pat Toomey is no student of logic.
Otherwise, the Republican U.S. senator from Pennsylvania would not plead for approval of his nominees for federal court in Pennsylvania so soon after joining other GOP obstructionists in refusing so much as a hearing for President Barack Obama's Supreme Court nominee, Merrick Garland.... Courts need a compliment of judges to function properly. So Toomey is asking Senate Majority Leader Mitch McConnell for Senate action to confirm judicial nominees Marilyn J. Horan in Pittsburgh and Susan Paradise Baxter in Erie.
But Republicans, including Toomey, wouldn't give the president the time of day after Supreme Court Justice Antonin Scalia died suddenly in February, and President Obama, following the U.S. Constitution, nominated Garland. Republicans would rather have the court lack a critical ninth member for a year than grant a Democratic president so much as a courtesy hearing.... Normally people don't care much about judicial nominees. But by their partisan obstinacy Republicans have pushed the issue into the spotlight. Pat Toomey is refusing to perform his constitutional duty to provide "Advice and Consent" of a Supreme Court nominee while at the same time demanding action on his own court nominees."
EDITORIAL: Birth control must wait for a ninth justice (San Francisco Chronicle [CA], 05/17/16)
"The Supreme Court needs a ninth justice.... The entire disappointing process demonstrates, yet again, how the lack of a ninth justice is seriously affecting the court’s ability to conduct its business.
It’s been two months since President Obama nominated Merrick Garland, chief judge for the U.S. Court of Appeals for the Washington, D.C., circuit. Garland has provided the Senate with a 142-page questionnaire listing his employment record, opinions and public remarks. He’s met with 46 senators, including 14 Republicans.
Yet the Senate Judiciary Committee continues to express no interest in holding a hearing on his nomination. The senators’ resistance is nothing more than base partisan obstructionism.
Neither the court’s calendar nor the importance of its rulings is based on the national election schedule. The Senate’s holdouts are depriving all Americans of their third branch of government."
Chris Fitzsimon: Burr’s absurd blockade of a judge in his home state (New Bern Sun Journal [NC], 05/17/16)
Opinion: "An African-American has never served as a federal judge in the Eastern District of North Carolina and Senator Richard Burr apparently intends to keep it that way, judging by his knee-jerk opposition to President Obama’s latest nominee to fill a seat on the court that has been vacant for 10 years, the longest vacancy in the country."
Is This the Worst Congress Ever? It can’t pass a budget, can’t confirm appointments, and now it can’t even scrounge up funding to address public-health crises. (Atlantic, 05/17/16)
NORM ORNSTEIN: "Now add the embarrassment of the unprecedented failure of fundamental fiduciary responsibility by the Senate to even acknowledge the right of a president to nominate an individual to fill a vacancy on the Supreme Court with eleven months to go in his term, and then the obdurate refusal to hold a hearing on a nominee many key Republicans, like Orrin Hatch, had praised to the skies before his nomination, before turning him into a nonperson.... The point man in this exercise, Senate Judiciary Committee Chairman Charles Grassley of Iowa, has become Obstructor-in-Chief.
The awful lapse on the Supreme Court nomination was part of a larger outrage, the failure to confirm a much larger number of nominees to both judicial and executive branch posts, a record for this Congress far more dismal than its comparable predecessors. ... There has been a huge spike in “judicial emergencies,” which are formally designated by the courts when unconscionable delays in justice are caused by heavy workloads produced via court vacancies."
Editorial: Another case for filling U.S. Supreme Court vacancy (Tampa Bay Times [FL], 05/17/16)
"Once again, the stubborn refusal by Senate Republicans to act on the president's nominee to fill the court's vacancy is undermining the court's rule and delaying justice.... the larger problem is a high court so paralyzed it cannot function as a final word on constitutional rights. Bumping these cases to the lower courts fosters a patchwork legal system, where rights are defined by the geography of individual judicial circuits. Since the death of conservative Justice Antonin Scalia in February, the court has deadlocked three times, leaving the nation without clarity in the law, the Supreme Court's very constitutional purpose.
Senate Republicans have made clear they do not intend to act on President Barack Obama's highly qualified nominee, federal appellate Judge Merrick Garland, currently chief judge of the D.C. circuit, arguing the next president should fill the vacancy. All parties before the court deserve a fully functioning bench, and justices need to be deciding cases, not engineering legal settlements. This court has a singular role, and it needs to fulfill it.
Senate Republicans need to get on with their jobs and take up the nomination. The vacancy is creating uncertainty across the judicial system. There is no just reason to delay the resolution of the serious cases that come before this court. One branch of the government is being held hostage by another, and it's time to return the balance of power to the democratic system."
Supreme Court vacancy watch Day 93: At least one federal judiciary nominee will get a vote (Daily Kos, 05/16/16)
Joan McCarter: "There were 19 judicial emergencies during the mid-point of George W. Bush's final year in office, a number that had been reduced by the Democratic Senate and a judiciary chair and Senate leader who took their jobs seriously. The Garland blockade is an extreme manifestation of what the Republicans have purposefully done to the federal judiciary—but it sure doesn't tell the whole story."
Confirmation vote is about who can serve as federal judges (Justice Watch, 05/16/16)
"Tonight the Senate will vote on the nomination of Paula Xinis to be a district court judge in Maryland. It is just the seventh confirmation vote on a judge this year, and Xinis, who is endorsed by both Maryland senators and has been rated “unanimously well qualified” by the American Bar Association, should be easily confirmed. ... Xinis’ professional background in civil rights and indigent defense is precisely the sort that, as a matter of overwhelming statistical fact, the federal bench lacks. The absence of such experience comes at the expense of fair courts and sound judicial decisionmaking, as Justice Byron White observed while serving on the Supreme Court with longtime civil rights lawyer Thurgood Marshall. ... The Judiciary Committee voted Xinis onto the floor via voice vote, without any opposition. The same result should hold with her confirmation vote. If not, the senators who vote against her will be sending a dispiriting message to our nation’s legal community, including law students beginning their careers: If you want to be a judge, the easiest path forward is a career spent protecting the powerful, and anything else will lead to smear campaigns and personal attacks."