Editorials and Opinion
Trump Judicial Nominees (PrawfsBlawg, 05/10/17)
Prof. David Fontana: his judicial nominations so far have reflected what I blogged about previously: the strength of the judicial nominations part of his party.... I recently wrote an essay for a symposium in the Wisconsin Law Review about the relatively “cooperative” approach to judicial nominations utilized by the Obama Administration. The Obama Administration’s first nominee to the circuit courts was David Hamilton, a centrist district court judge in Indiana with established ties to both political parties. Hamilton was not particularly young, not particularly famous, and was the only circuit court nominee announced the day he was announced. By contrast, many of Trump’s nominees announced this week are very connected in the Republican Party, very young, and very known—and he announced ten nominees in one day.
Chuck Grassley Gives a History Un-Lesson on Judges (People For blog, 04/05/17)
Paul Gordon: During the eight years President Clinton served in office, more than 60 of his circuit and district court nominees became victims of the Republicans’ “pocket filibuster.” ... George W. Bush took office, at which point Republicans spent eight years demanding that all judicial nominees receive floor votes.
But the minute it was a Democratic president again, the GOP went back into obstruction mode. ... Republicans exercised every procedural trick in the book to slow down the confirmation process for all judicial nominees, regardless of level (circuit or district), regardless of support from home state Republicans, and even regardless of a complete lack of opposition at all.... Republicans escalated their war even further when Grassley himself announced that he and his party would refuse to allow President Obama to fill any of the three vacancies on the 11-member D.C. Circuit. ... As Rep. Adam Schiff of California said: “When McConnell deprived President Obama of a vote on Garland, it was a nuclear option. The rest is fallout.”... Less than three months into the Trump administration, with only one nominee, Republicans are threatening to change the rules for Supreme Court nominees.
The 12 times Republicans insisted on a 60-vote threshold for Obama’s judicial nominees (American Constitution Society Blog, 03/30/17)
Christopher Kang, Guest Post: Many Senate Democrats believe that a Supreme Court nominee should be within the mainstream and therefore able to earn the support of 60 Senators. Given the stakes, this hardly seems unreasonable, but Republicans now claim that a 60-vote threshold for judicial nominees would be unfair. Here are the 12 times they insisted on a 60-vote threshold for Obama’s lower court nominees—and, really, once Republicans demanded that a trial court judge in Rhode Island needed 60 votes, shouldn’t Democrats be able to ask for the same for the highest court in the land?
How Barack Obama Lost the Judicial Nomination Standoff: Or did he win after all? (Slate.com, 09/30/16)
Dahlia Lithwick: "In March of 2009, Obama vowed to put the “confirmation wars behind us” and picked, as his very first judicial nominee, David Hamilton—a moderate, white, 14-year veteran of the federal bench—for an open seat on the 7th U.S. Circuit Court of Appeals. It should have been a snoozer. ... Comparing Obama’s selection of the unassuming Hamilton with the petting zoo of right-wing ideologues that George W. Bush had feted in the Rose Garden immediately after assuming office, Obama’s choice was tame....Months later, when it finally came time to vote, Hamilton was confirmed with a vote of 59–39. Lugar was the only Republican to vote yes. Hamilton has served with distinction since then. ... But the refusal to hold even a hearing or a vote for Judge Garland transcends the prior trend of ugly confirmation battles .... Today, as a result of Republican obstruction of Obama’s judicial nominations in the Senate, 35 courts are sufficiently shorthanded as to be designated “judicial emergencies.” When Obama took office in 2009 there were 12 such designations."
Did Obama win the judicial wars? (Politico, 08/08/16)
Michael Grunwald: "Sheldon Goldman, an academic who crunched historical data to create an Index of Obstruction and Delay, found that the index reached record highs under Obama even before the GOP took control of the Senate in 2015 and slowed the flow of confirmations to a trickle. While Obama has gotten two more judges confirmed than Bush did in his eight years—Clinton and Ronald Reagan both got about 50 more—judicial vacancies have more than doubled in the Obama era after getting cut in half during the Bush era. There are now 29 understaffed courts designated “judicial emergencies,” up from 12 when Obama took office. And those numbers don’t reflect how Senate Republicans turned even uncontroversial lower-court nominations into legislative ordeals, converting the filibuster, previously extremely rare, into a routine tool of delay, often for judges who were eventually confirmed unanimously."
Obama’s judicial opportunity (MSNBC, 11/22/13)
Steve Benen: " If Obama had gone out of his way to pick an ideological fight with Senate Republicans – nominating the most left-wing, hyper-liberal jurists he could find – the GOP’s unprecedented obstructionism would at least be marginally more defensible. But the president has done the polar opposite, trying to avoid these fights and circumvent the need for filibusters by choosing center-left, mainstream nominees – who ended up getting blocked anyway. For his trouble, radicalized congressional Republicans decided ideology, qualifications, and temperament no longer mattered – they’d block Obama’s nominees because they’re Obama’s nominees. ... Now that judicial filibusters are a thing of the past, Obama could shift his focus, look beyond nominations of aggressively moderate, center-left jurists, and start sending actual liberals to the Senate for confirmation. Or put another way, Obama could select judicial nominees who are as progressive as Bush’s nominees were conservative."
Sen. Leahy: Arguments of Convenience Block Judicial Appointments; Once described as unconstitutional by the GOP, filibustering has become its default strategy. (National Journal, 11/18/13)
Sen. Patrick Leahy: "Senate Republicans have abandoned this responsibility, using unprecedented filibusters to delay and obstruct President Obama from appointing to the federal bench even nominations that enjoy bipartisan support. Senate Republicans have forced cloture, a procedural mechanism to bring a matter to a vote, to end filibusters on 34 nominees, nearly twice as many nominees than required cloture during President Bush's two terms. Almost all of these nominees were, by any standard, noncontroversial and ultimately were confirmed overwhelmingly.
Republican obstruction has left the federal judiciary often with 90 or more vacancies over the past five years. ... Senate Republicans have abandoned this responsibility, using unprecedented filibusters to delay and obstruct President Obama from appointing to the federal bench even nominations that enjoy bipartisan support. Senate Republicans have forced cloture, a procedural mechanism to bring a matter to a vote, to end filibusters on 34 nominees, nearly twice as many nominees than required cloture during President Bush's two terms. Almost all of these nominees were, by any standard, noncontroversial and ultimately were confirmed overwhelmingly.
Republican obstruction has left the federal judiciary often with 90 or more vacancies over the past five years.... The unprecedented obstruction also has affected the Court of Appeals for the D.C. Circuit ... The same Republican senator who in these pages recently cited caseload concerns once noted that "comparing workloads in the D.C. Circuit to that of other circuits is, to a large extent, a pointless exercise. There is little dispute that the D.C. Circuit's docket is, by far, the most complex and time consuming in the Nation.""
A Closer Look at Confirmed Federal Judges (Atlantic, 08/12/11)
Andrew Cohen: " I'd like to take a closer look at those judges who have been confirmed so far under the Obama Administration. These confirmations have come at a much slower pace than we saw either with the Clinton Administration or during the era of George W. Bush. ... I understand that political opposition to judicial candidates manifests itself these days at the point of filibuster and not at the point of confirmation on the merits. Apart from being ass-backward, however, this practice is also cowardly. As a senator, you get your shots in on the nominee, and do the damage you intend to do, and then pretend to the world that all is well and the Senate is in one big unanimous consent. And why wouldn't you vote "yes" for a judicial nominee whose nomination you had stalled for a year? You get to play the villain and the hero all in the same play!
If anything, the high percentage of jurists who ultimately are confirmed with little or no opposition, 77 out of 89 as we have seen, make the Senate look worse, not better. There should be a special place reserved in political hell for any senator, of any party, who votes for a judicial nominee after voting procedurally against that candidate's ability to get a vote on the merits of her nomination. Such antics are a waste of time, a waste of money, and a waste of the use of precious human resources (the nominees themselves). Right now, the Senate has confirmed 50 fewer Obama appointees than it had for the same period of the presidency of George W. Bush."
THE DARK SIDE: It is time to confirm Nourse to the 7th Circuit (Wisconsin Law Journal, 05/17/11)
David Ziemer: "I voted for [Sen. Ron] Johnson, of course, but this is very disappointing. Nourse is certainly not someone that I would nominate to be a federal judge — she believes that Lochner v. New York, 198 U.S. 45 (1905), was incorrectly decided, while the restoration of liberty of contract guaranteed in Lochner is my life’s work.... I am confident that Nourse would be an open-minded judge, and a well-qualified addition to the court. Obama’s history in judicial appointments to the 7th Circuit also provides reason to give deference to the appointment. His first appointment to the court, Judge David Hamilton from Indiana, has proven to be a most impressive judge.... Nourse is well-qualified for the court. There are no red flags to suggest she would not make a fine judge. It is long past time that her nomination proceeds to the Judiciary Committee."
OPPOSING JUDICIAL NOMINEES AT THE GENETIC LEVEL.... (Washington Monthly, 12/22/10)
Steve Benen: "Obama, in the spirit of bipartisanship, tried to end the confirmation wars. Simultaneously, Republicans preferred a surge.
There's been some movement of late, but the obstructionism on this has been extraordinary."
Witch hunt: Wash. Times calls another Obama judicial nominee "radical" (Media Matters for America, 03/04/10)
"After declaring that Supreme Court Justice Sonia Sotomayor and Judges Edward Chen and David Hamilton were all "radical" judicial nominees, The Washington Times has turned its sights on Goodwin Liu, President Obama's nominee for the 9th U.S. Circuit Court of Appeals, declaring that he, like the other Obama nominees, is a "radical" because of his views on constitutional "welfare" rights. In fact, Liu's views are in accordance with those of former Supreme Court justices like Thurgood Marshall and prominent legal scholars."
Keenan confirmation vote scheduled (Charleston Gazette [WV] , 03/01/10)
Sustained Outrage Watchdog blog: "Well, the Senate seems to have settled on four months as the appropriate amount of time for a nominee to an appellate court to wait for a vote after passing out of committee....[David] Hamilton is the outlier, since Senate Republicans chose to use his nomination to send a message to the president that they are willing to hold his nominees hostage for political gain, even non-controversial centrists like Hamilton."
Obama Nominates Progressive Goodwin Liu for 9th Circuit (MyDD, 02/24/10)
Jonathan Singer: "This is really great news -- it's hard to overstate this.... Liu is one of the brightest legal minds in the country, and what's more (and perhaps more importantly) he has the ability to articulate his views in a cogent manner. In other words, he would make a great judge."
Remarks by the President at the Senate Democratic Policy Committee Issues Conference (The White House, 02/03/10)
"Well, this is going to be a priority. Look, it's not just judges, unfortunately, Pat, it's also all our federal appointees. We've got a huge backlog of folks who are unanimously viewed as well qualified, nobody has a specific objection to them, but end up having a hold on them because of some completely unrelated piece of business. That's an example, Michael, of the kind of stuff that Americans just don't understand. On the judges front, we had a judge for the -- coming out of Indiana, Judge Hamilton, who everybody said was outstanding -- Evan Bayh, Democrat; Dick Lugar, Republican; all recommended. How long did it take us? Six months, six, seven months for somebody who was supported by the Democratic and Republican senator from that state. And you can multiply that across the board. So we have to start highlighting the fact that this is not how we should be doing business. Now, in fairness -- in fairness, when we were in the minority, there were some times where we blocked judges, we blocked appointees. I think it's fair to say we were a little more selective in how we did it -- "a lot more," somebody said. (Laughter.)"
Going Robe: Obama's judicial appointment strategy isn't working. Here's a better one (The New Republic, 12/17/09)
Prof. David Fontana: "Obama would have public opinion on his side. Research conducted recently by Stephen Ansolabehere of MIT and Nathaniel Persily and Jamal Greene of Columbia Law School found that 58 percent of Americans thought it very or somewhat important for the Supreme Court to exhibit "empathy" in judging. A majority also supported interpreting the Constitution according to "current realities" rather than according to the "original intentions" of the Framers."
Vacancies on federal bench need to be filled now (Salt Lake Tribune [UT], 12/09/09)
Prof. Carl Tobias: "vacancies in 11 percent of federal appellate and district court judgeships undermine swift, inexpensive and equitable case disposition. Thus, President Obama must expeditiously nominate, and senators must promptly confirm, many outstanding judges."
Commentary: Filling lower federal court openings (McClatchy newspapers, 11/30/09)
prof. Carl Tobias: "federal courts presently experience 98 vacancies out of the 858 appellate and district court judgeships. These openings, which comprise eleven percent of the lower federal court judgeships, undermine expeditious, inexpensive and fair case disposition.
Now that the 111th Senate is nearing the end of its first session, President Barack Obama must swiftly nominate, and the Senate must promptly confirm, appeals and district court judges, so that the federal judiciary will be at full capacity."
Thanksgiving and the Third Branch (Findlaw, 11/25/09)
Prof. Carl Tobias: " even more jurists might have received confirmation, had some GOP members better cooperated with Democrats. For much of the 111th Congress, Republican Senators have slowed floor debates and votes by placing anonymous holds on nominees.
Democrats and Republicans should work together more closely to approve judges because the current situation – in which the federal courts are operating with more than ten percent of their judgeships vacant -- may prevent the federal judiciary from swiftly, inexpensively, and equitably resolving cases.
The judiciary, in turn, should be grateful that the related idea of comprehensive judgeships legislation, which last passed in 1990, is apparently receiving serious consideration, "
Editorial: End hypocrisy on court appointments (Des Moines Register [IA], 11/24/09)
"Senate Republicans have sent a signal that the Sotomayor confirmation was just a warm up, and the real battles are yet to come over President Barack Obama's appointments to the federal courts.
A group of Senate Republicans attempted a filibuster to block a confirmation vote for U.S. District Judge David Hamilton to a seat on the U.S. Court of Appeals for the 7th Circuit in Chicago. The filibuster failed on a 70-29 vote, with 10 Republicans voting against the effort.
Hamilton ultimately won confirmation, but with all but one Republican voting to reject the nominee, the vote sent the unmistakable message that Obama's judicial nominees won't get a free ride in the Senate."
Despite hypocrisy, filibuster ended (Roanoke Times [VA], 11/24/09)
Judging the Environment's Glenn Sugameli published Letter to the Editor: "In the ultimate hypocrisy, 29 senators who claimed not to trust a judicial nominee to interpret the Constitution tried to block him by violating what they insisted the Constitution requires.
However, 10 Republican senators from across the country and the political spectrum joined a successful vote to end the filibuster of President Obama's first appellate court nominee, David Hamilton."
Politics And The Judiciary Prize (Huffington Post, 11/24/09)
Stanley Kutler: "The opposition's decision to stall and oppose President Obama's judicial nominations is covered in irony and hypocrisy, and further draws into question the majority's ability to govern....The recent political salvoes and maneuvers to thwart President Barack Obama's nomination of District Judge David Hamilton to the 7th Circuit Court of Appeals offers a preview of coming attractions for judicial nominations....Obama should not lose sight of his moment and his opportunity to shape (and re-shape) the judiciary in his own image -- just as his predecessors have done throughout history."
Our Views: Inconsistent on nominees (Advocate [Baton Rouge, LA], 11/23/09)
Editorial: "Now that Barack Obama is president, 29 of the 40 Senate Republicans have reversed course without even the appearance of consistency. They voted to uphold a filibuster against Obama’s first significant nominee on the courts of appeal. Louisiana’s own David Vitter was among the Republicans casting a hypocritical and unjustifiable vote for the filibuster against the elevation of U.S. District Judge David Hamilton, of Indiana, to an appeals court in the Midwest."
Attempt to appease GOP earns slap in face (Fort Wayne Journal Gazette [IN] , 11/22/09)
Sylvia A. Smith column: "David Hamilton certainly had other qualities that made him worthy of Obama’s consideration, but the outreach to Republicans was a dominant leitmotif. It was a gesture that the White House was serious about calming the partisan hostilities over judicial nominees of the past several presidencies....the important vote in the Hamilton confirmation process was the filibuster vote. Ten Republicans did the right thing. "