Skip Navigation
Judging the Environment judicial nominations photo

A project tracking federal judicial nominations and courts.

Editorials and Opinion


Opinion Type


Items 1 - 30 of 365  12345678910Next

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?

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."

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."

“A deficit in our courts”: Senator Sessions and the lack of judicial professional diversity (Justice Watch, 07/24/15)
KYLE C. BARRY: "our federal courts are staffed largely with judges who, in their legal careers before taking the bench, represented only the most powerful in American society, either defending massive corporations or wielding the enormous power of the state against criminal defendants. ... D.C. Circuit Judge Nina Pillard noted how “[t]here’s a sense, somehow, in the process of finding judges or candidates, that being in a large corporate law firm is neutral and being an advocate for people who have been subject to discrimination or retaliation or repression of their speech or their religious beliefs is not neutral, and . . . I would question that.” This skewed sense of what’s “neutral” emerged during Senator Sessions’ questioning of Paula Xinis. ... all judges, regardless of background, are shaped by the perspectives and experiences acquired over many years in the law. Fair and equal courts require a diversity of these perspectives, not any one in particular"

D.C. Circuit Caseload Rises From Spike in Agency Challenges (National Law Journal, 06/30/15)
"The caseload of the U.S. Court of Appeals for the D.C. Circuit rose sharply over the past year from new administrative challenges to environmental regulations and labor rulings, Chief Judge Merrick Garland said at the circuit’s judicial conference last week. The increase in new cases, which Garland estimated at nearly 30 percent, comes on the heels of criticism that the circuit’s caseload statistics did not justify filling judicial vacancies. Some Senate Republicans in 2013 opposed to three nominations to the D.C. Circuit—Patricia Millett, Cornelia Pillard and Robert Wilkins—cited declines in the court’s caseload. Between March 2014 and March 2015, the D.C. Circuit saw a more than 20 percent increase in new appeals filed, from 941 to 1,138, according to the most recent publicly available case data. The biggest jump was in new administrative cases, which nearly doubled....The appeals court has a full bench for the first time in more than 22 years, Garland said. In November 2013, the U.S. Senate invoked the so-called “nuclear option" to allow Democrats to push through President Barack Obama’s stalled D.C. Circuit nominees."

Robert Bork Wouldn't Have Changed History (Bloomberg News, 06/29/15)
Jonathan Bernstein column: "As a compromise candidate, Kennedy would preserve the president’s ability to influence the court far into the future, yet also reflect the Senate’s preferences. (Senate liberals and moderates wouldn't have dreamed of blockading just any Reagan nominee, as Republicans have done for some appeals-court vacancies under Obama.)"

How Harry Reid Changed the Federal Courts (New Yorker, 03/27/15)
JEFFREY TOOBIN: "The Senate had confirmed only five Obama appointees to the federal appeals court in the election year of 2012, but Reid moved to double the pace in 2013. Republicans responded by filibustering almost every judicial appointment to the appeals court and slow-walking appointments to the district court, which had been routine and uncontroversial under earlier Presidents. ... With Reid’s blessing, Senate Democrats changed the rules so that only a majority would be required to move lower-court judgeships to a vote. Freed from the threat of filibusters, Reid pushed through thirteen appeals-court judges in 2013 and 2014, a group of exceptional quality. They included Patricia Millett, Nina Pillard, and Robert Wilkins on the D.C. Circuit. For the first time in decades, that court now has a majority of Democratic appointees. Other confirmations included such luminaries as Pamela Harris (a noted professor and advocate) on the Fourth Circuit, ... and David Barron (a Harvard law professor and Obama Administration lawyer) on the First. ... At the same time, Reid pushed through more than a hundred district-court judges in his last two years as majority leader."

Jonathan Bernstein: Lift the blockade on confirming US judges (McClatchy newspapers, 01/29/15)
"Democrats weren't objecting to ideology-based filibusters against specific nominees, but to the across-the-board blockades preventing the president from filling any judicial vacancy at all. The filibuster that pushed Democrats over the edge was over three seats on the District of Columbia Circuit Appeals Court."

Editorial: The Homogeneous Federal Bench (New York Times, 02/07/14)
"[A] judge’s experience and personal history are, at times, critical to how she or he approaches the job. Given this reality, the makeup of the judiciary should reflect as much as possible the public whose cases come before it. For a long time, most of the attention to increasing diversity has focused on race, ethnicity and gender, where progress has been slow but incremental. Equally important is diversity of professional experience ... Recently, Mr. Obama has worked to strike a better balance."

Facts show filibuster letter was all wrong (Pocono Record [PA] , 01/10/14)
GLENN SUGAMELI Letter to the Editor: "Facts and history dispel the arguments in a Jan. 2 letter, "Filibuster change will haunt Democrats."... Patricia Millett was praised by Sen. Ted Cruz (R-Texas) and endorsed by the Chamber of Commerce's chief litigator. The second nominee was endorsed by arch-conservative Viet Dinh, and the third was previously confirmed unanimously by the Senate as a federal judge....The recent Senate rules change, however, was triggered by Republican senators' repudiation of that compromise. Unprecedented filibusters had the declared intent and result of blocking votes on any possible Obama nominee to fill three D.C. Circuit vacancies, after Senate Democrats helped confirm four President George W. Bush judges to the court. ...Bipartisan Senate simple majority votes rejected Bork and confirmed Thomas, Roberts and Alito to the Supreme Court."

Expect More Of These Legal Distortions From Right-Wing Media in 2014 (Media Matters for America, 12/27/13)
by MEAGAN HATCHER-MAYS: "In 2013, right-wing media kept busy misinforming about President Barack Obama's judicial nominees and progressive precedent such as health care reform and voting rights, all in service of spinning an unprecedented year of Republican obstructionism."

The 7 Most Important Things Congress Did in 2013 (and the Top 25 Things It Didn’t) (Roll Call, 12/23/13)
David Hawkings column: "The 7 Most Important Things Congress Did:... Eliminate the filibuster as a tool for blocking almost all nominees. The Senate changed its rules to lower the threshold for invoking cloture, or limiting debate, on executive and judicial nominations except to the Supreme Court — from three-fifths of all senators to a simple majority of those present. It’s the biggest limitation on the powers of the minority party, and the most fundamental alteration to the way the Senate functions, since 1975. Shift the ideological balance on the nation’s second-most influential federal bench, the U.S. Court of Appeals for the District of Columbia Circuit. The Senate confirmed three of President Barack Obama’s choices for longstanding vacancies. When the year began, four active judges on the court were nominees of Republican presidents and three had been picked by Democrats."

Letter: Facts all wrong in Jensen column (Oneida Daily Dispatch [NY], 12/23/13)
By Glenn Sugameli, senior attorney, Defenders of Wildlife: "Rick Jensen’s Dec. 14 column on, “The liberals who killed Jimmy Stewart” overflows with factual errors and absurdities. The prior rule ended nominee filibusters with 60 votes, not “2-thirds of the Senate;” and Elena Kagan never served on the D.C. Circuit — because GOP senators denied her a hearing when President Clinton nominated her. The Senate rules change was not caused by Jimmy Stewart-inspired filibusters to “prolong the process of confirming President Obama’s appointments.” Instead, it was triggered by unprecedented filibusters with the declared intent and result of blocking votes on ANY possible Obama nominee to fill three D.C. Circuit vacancies, after Senate Democrats helped confirm four Bush judges to the court. Obama’s D.C. Circuit nominees will not “load up the court with Big Government liberals who believe the constitution is a flexible living document that can be ignored as they see fit.” One was endorsed by the Chamber of Commerce’s chief litigator, another by arch-conservative Viet Dinh, and the third was unanimously confirmed by the Senate as a federal judge."

Barney Frank: Free to call Republican senators ‘crybabies’: Doing away with the required 60-vote majority is one of the best things to happen in a long time. (Portland Press Herald [ME] , 12/22/13)
"I can think of no more accurate term to apply to those Republican senators who are bitterly protesting that the Senate majority used its undoubted constitutional power to prevent the minority from keeping the president from making those appointments to judicial and executive offices to which he is constitutionally entitled. Until recently, Republicans were using the ability to prevent the majority from acting to keep President Obama from filling three vacancies on the circuit Court of Appeals in the District of Columbia. Note that the president was not seeking to add judges to that court beyond what is statutorily established; he is simply trying to fill three vacancies, exactly as all of his predecessors had been able to do. The political point is that this is the court that hears all appeals of regulations adopted by executive agencies according to the statutory authority they have been given."

Barack Obama Is Not George W. Bush (New York Magazine, 12/20/13)
Jonathan Chait: "Obama’s prospects for executive action are actually stronger now. The main impediments to an aggressive regulatory agenda were twofold. First, Republicans could stop regulations by blocking nominees for major agencies. Second, they held a functional majority on the D.C. Circuit Court, and stood poised to block Obama’s environmental and financial reforms. Republicans understood full well the importance of that court to Obama’s second term. (McConnell, again, identified the crucial dynamic: Obama’s second-term agenda, he said, “runs straight through the D.C. Circuit.”) That’s why Republicans took the extraordinary step of declaring a full blockade on any nominee for the court’s three vacancies, however ideologically moderate. And it’s why the Senate Democrats’ decision to abolish the judicial filibuster looms so large. With a stroke, they eliminated the strongest leverage Republicans have to gum up the president’s second term. Obama has managed to seat nominees to the Federal Housing Authority and the Consumer Financial Protection Bureau. And the odds that the court will overturn new regulations have diminished sharply."

Confirmation checklist for post-nuclear Senate (The Hill, 12/19/13)
By Prof. Carl Tobias

A more functional Senate (Maddow Blog {MSNBC], 12/17/13)
Steve Benen: "the Senate has confirmed 13 executive-branch and judicial nominees in just 7 days. How many of them would have been delayed or blocked by Republican obstructionism under the old filibuster rules? According to a Democratic Senate source, all 13....GOP senators had some ideas last week about pushing back against procedural progress, but their plan failed rather spectacularly. Apparently, however, they’re not done strategizing on how best to inject more dysfunction into the year-end process."

Guest writer Gridlock Guardians Attacks on Pryor hypocritical (Arkansas Democrat Gazette, 12/16/13)
HARRY TRUMAN MOORE, former president of the Arkansas Bar Association: "Sen. Mark Pryor (D-Ark.) is under attack-for taking a principled stand and reaching across the aisle to end gridlock. A group calling itself the Judicial Crisis Network is running ads attacking Pryor for refusing to filibuster President Barack Obama's judicial nominees....Supporters of Bush's nominees organized something they then called the Judicial Confirmation Network to demand a yes-or-no vote on every judicial nominee. ... They found an ally in Mark Pryor. Against the wishes of some in his own party, he negotiated a bipartisan agreement ... In response to this unprecedented obstruction, Senate Democrats changed the Senate rules last month .... But Mark Pryor did not join them. Instead, he's taking the same bipartisan position now that he took when George W. Bush was president: Every judicial nominee deserves a vote except under extraordinary circumstances.... since it's hard to oppose confirmations en masse and still call yourself the Judicial Confirmation Network, the Washington-based group has changed its name: it's now the Judicial Crisis Network. Mark Pryor, in contrast, is still Mark Pryor. If anything, in breaking party lines on filibuster reform despite the Republicans' blatant abuse of that procedure, he is bipartisan to a fault. Now, as he did before, Mark Pryor believes that our federal courts need judges, and that, absent extraordinary circumstances, every judicial nomination deserves a yes-or-no vote-regardless of what party's in power."

Republicans Set Themselves Up for Judicial Failure: After picking a fight over a court appointee the GOP didn't really oppose, they're stuck watching liberals advance. (National Journal, 12/16/13)
James Oliphant: "Republicans are caught in a bizarro universe largely of their own making. Had Mitch McConnell shown any willingness to give even an inch on nominations, particularly on the three picks for the federal appeals court in Washington, there would have been no filibuster rule change. Specifically, Democrats point to the filibuster of Patricia Millett, a moderate who, among other things, worked as a lawyer in the George W. Bush administration. Republicans were candid about their reasons for opposing her, with senators such as Orrin Hatch and Ted Cruz admitting that it had nothing to do with her qualifications to sit on the federal bench. Millett is a partner a nationally prominent (and big business-friendly) law firm who has argued before the Supreme Court more than 30 times. Every Republican on the Judiciary Committee voted against sending her nomination to the Senate floor, where McConnell decided to block her confirmation."

Editorial: Farewell, Filibuster; There’s more work to be done, but this was a big win for democracy. (Nation, 12/16/13)
"During his first five years in office, President Obama faced unprecedented obstruction of routine executive and judicial nominations ... the stalemate returned, coming to a head this fall when the GOP nixed nominations to the DC federal appeals court. Here the long-term stakes are high: the administration’s carbon emission regulations are sure to come before the court, as will much of Dodd-Frank financial reform and large parts of the Affordable Care Act. It’s the last shot (before the Supreme Court) for the GOP and its backers to thwart these laws."

GOP Blocks Judiciary Committee From Even Meeting (People For blog, 12/12/13)
"Senate Republicans have escalated their sabotage of the judicial nominations process this week, most recently by forcing the Senate to wait until 1:00 am this morning to hold a confirmation vote on Nina Pillard to the D.C. Circuit. ... The obstruction isn't just on the Senate floor: This morning, Republicans prevented the Senate Judiciary Committee from even meeting.... The committee has a busy schedule, with votes scheduled for 15 judicial nominees who have testified before the members and answered follow-up written questions. Among those are nominees for vacancies designated as judicial emergencies by the Administrative Office of U.S. Courts. Each one of the nominees has been fully vetted and has the support of their home state senators, including Republicans Mark Kirk (IL), Pat Roberts and Jerry Moran (KS), Lamar Alexander and Bob Corker (TN), Roy Blunt (MO), and Pat Toomey (PA)."

Statement by the President on the Confirmation of Nina Pillard (The White House, 12/12/13)
"I thank the Senate for confirming Nina Pillard to be a judge on the U.S. Court of Appeals for the District of Columbia Circuit, which for the first time, will have five active female judges on the bench. Throughout her career, Ms. Pillard has displayed an unwavering commitment to justice and integrity. Her landmark accomplishments on behalf of women and families include Supreme Court cases defending the constitutionality of the Family and Medical Leave Act and opening the doors of the Virginia Military Institute to female students. I’m confident she will be a diligent, thoughtful and judicious addition to the D.C. Circuit."

Editorial: 59 percent good enough (Scranton Times-Tribune [PA], 12/10/13)
"The Senate engaged in representative democracy Tuesday, voting 56-38 to confirm a sound candidate to the U.S. Court of Appeals for the District of Columbia. With 59 percent of the vote, attorney Patricia Millett will fill one of three vacancies on the powerful 11-member court ... rampant abuse of the filibuster rule had created a case of minority rule with no respect for majority rights.... Republicans who misused the filibuster to block confirmations claimed that the D.C. court is under-worked, that they acted for economy rather than to keep a conservative majority on the court. Yet the U.S. Judicial Conference's Standing Committee on Judicial Resources had reported to the Senate that the court's workload has been consistent for 10 years, during which the Senate confirmed three of President George W. Bush's nominees to the court. ... President Obama should use the restoration of democracy in the Senate to re-establish timely access to the U.S. district and appellate courts."

Editorial: New Senate rule could help us breathe easier (Concord Monitor [NH], 12/10/13)
"The air that you and every other New Englander breathes would be a bit cleaner if not for the U.S. Court of Appeals, District of Columbia Circuit ... Had that court’s decision on a rule requiring coal plants to curb emissions that descend on other states gone the other way, thousands of people downwind of the Midwest’s old coal plants might still be alive, according to the EPA. And that, in part, is why Senate Democrats, at long last, chose to exercise “the nuclear option,” terminating the Senate rule that required 60 votes to end a filibuster. Though it could come back to haunt them, they did what they had to do to save the Senate, prevent tyranny by the minority and protect public health.... The court ... skews to the right, which is precisely why GOP senators used the filibuster rule to prevent any of President Obama’s nominees to it from being seated. The 2011 federal clean air case that was the subject of yesterday’s editorial and today’s hearing in the U.S. Supreme Court was a split decision. Two appointees of George W. Bush voted to reject the EPA’s rule; one, a Bill Clinton appointee, voted to uphold it.... three eminently qualified nominees whose confirmations to that court have been filibustered."

The World After Filibuster Reform (New York Times, 12/10/13)
Editorial Page Editors blog, by Jesse Wegman: "if ending the filibuster in these circumstances was really such a “grave mistake,” as Senate Minority Leader Mitch McConnell has said, then we should be able to count on Republicans to resurrect it when they’re back in power. The fact that a highly qualified, broadly respected, and thoroughly mainstream nominee like Patricia Millett couldn’t get confirmed without the so-called “nuclear option” means both parties have much bigger things to worry about than any individual judge."

Juan Williams: Sen. Jeff Merkley is the man of the year in Congress (The Hill, 12/09/13)
Juan Williams column: "Merkley, with a big assist from Sen. Tom Udall (D-N.M.), won the biggest vote of the year on Capitol Hill ... The two first-term senators successfully argued to the Democratic caucus that the GOP’s use of more than a quarter of the filibusters in history against President Obama’s nominees was one of the root causes of today’s dysfunctional Congress.... Merkley and Udall also made the case that resentment caused by the GOP’s frequent use of “holds” and filibusters polarized the Senate and led to the failure to deal with major issues ... That vote opens the door to a newly active Senate and a rush of votes on judicial nominations and agency heads.... there are 52 judicial nominations awaiting Senate action, including 17 who simply need to get a vote. The GOP recently blocked all three Obama nominees to the U.S. Court of Appeals for the District of Columbia without any regard to their qualifications. They claimed any nominee from the Obama White House tilted the court and its power to rule on federal agency regulations to the left."

Peter Goodman: Setting the record straight on Senate filibuster (Las Cruces Sun-News [NM], 12/08/13)
"The filibuster is not in the U.S. Constitution.... The rules on filibusters have changed before.... Filibusters of judicial or executive branch presidential appointments were even rarer than other filibusters. Such filibusters have occurred something like 182 times in our history, and just more than half that total (92) were Republican filibusters during the Obama administration.... (They had even announced this year that they would filibuster any Obama nominee to the [D.C.] Circuit Court of Appeal. One prominent senator even apologized to a nominee, telling him it wasn't about the nominee.)"

Republicans commit unprecedented obstruction: Times of Trenton Letter to the Editor - Dec. 6:  (The Times of Trenton [NJ] , 12/06/13)
Ronald A. LeMahieu: "With their opposition to President Obama’s three recent nominees to the D.C. Circuit Court of Appeals, Republicans have gone too far. Sometime ago, the Republican leader in the Senate said essentially that their goal was to make sure that Obama’s was a failed presidency. Since he took office, Republicans have become the “party of no”: “just say no” to all his initiatives and never propose constructive solutions to the nation’s problems. They will no longer be able to just say no to his judicial nominees."

Sen. Angus S. King Jr. column: Filibuster reform (Boothbay Register [ME], 12/06/13)
"This month, three judicial nominees to the D.C. Circuit Court of Appeals, including Patricia Millett of Dexter, were blocked not on the basis of their qualifications, but rather because they were nominated by President Barack Obama. Similarly, Republicans have used procedural hurdles to block executive nominees resulting in a leadership vacuum at many of our federal agencies. ... My vote in favor of the rule change, of finally invoking the nuclear option, reflects my belief that judicial and executive nominees deserve an up-or-down vote by the Senate, regardless of which party is in the majority, or which party controls the White House, and that we needed a structural adjustment to the rules so that the Senate could once again function."

OUR OPINION: Amending the president’s ability to govern (Patriot Ledger [MA], 12/05/13)
"The filibuster of three judicial appointees pushed Senate Majority Leader Harry Reid over the edge, compelling him to make the change to U.S. Senate rules members have been threatening for years.... The filibuster of three judicial appointees pushed Senate Majority Leader Harry Reid over the edge, compelling him to make the change to U.S. Senate rules members have been threatening for years."