Editorials and Opinion
Editorial: Federal court vacancy must be filled promptly (Buffalo News [NY], 09/21/17)
"The atrocious delays in the U.S. District Court in Western New York mean that neither plaintiffs nor defendants are getting the justice they deserve. It is a travesty that requires immediate attention.
Part of that travesty is that there has been a vacancy on the bench for years. The quickest remedy for that would be to confirm Kathleen M. Sweet for the job. Sen. Charles E. Schumer, D-N.Y., put forth her name more than two years ago, and then-President Barack Obama recommended her for Senate confirmation. The Judiciary Committee approved her nomination more than a year ago, but her nomination remains stalled in the Senate. And, with a Republican president in office, there is talk of GOP-friendly nominees in her place. However, Sweet is highly qualified and would bring welcome gender diversity to the bench.... The long-term solution is to add another judge to the allotted four active judgeships in what is the nation’s seventh-busiest district.... There is a vacancy on the bench. It must be filled as soon as possible, then attention must turn to adding another judgeship."
Letter: Nominate Ong for Southern District of Indiana again (Indiana Lawyer, 09/20/17)
Carl Tobias: In February 2016, President Barack Obama nominated Winfield Ong, who has served as an assistant U.S. attorney in the Southern District of Indiana for more than 20 years, to a vacancy on the Southern District. Ong is a highly qualified, moderate nominee, whom Indiana Sens. Dan Coats (R) and Joe Donnelly (D) powerfully supported. In June 2016, the Senate Judiciary Committee approved Ong without dissent. Nevertheless, he languished on the floor until his nomination expired, mainly because Republicans refused to permit his confirmation debate and vote.
Because Ong is a strong, mainstream nominee and the Southern District of Indiana needs this opening filled, President Donald Trump must renominate — and the Senate should confirm — him.... Sen. Todd Young (R) and Sen. Donnelly should urge President Trump to promptly nominate Ong again, just as he recently renominated five other experienced, moderate Obama nominees who had previously earned committee approval as Ong did.
Commentary: Nominate Ronald Russell for the federal court in Utah (Salt Lake Tribune [UT], 09/15/17)
Prof. Carl Tobias: In December 2015, President Barack Obama nominated Ronald Russell ... to a judicial vacancy on the District of Utah.
Russell was a highly qualified, moderate nominee whom Utah Republican Sens. Orrin Hatch and Mike Lee powerfully supported. The Senate Judiciary Committee reported Russell in May 2016 without dissent.
Nonetheless, Russell languished on the floor .... Russell’s renomination and confirmation can be achieved easily. Hatch and Lee should urge President Trump to promptly nominate Russell again, just as he recently renominated five other well qualified, mainstream Obama nominees, who had previously earned committee approval like Russell.
My Turn: Carl Tobias: Trump should renominate McElroy (Providence Journal [RI] , 08/08/17)
"In September 2015, President Barack Obama nominated Mary McElroy, who had been the public defender for Rhode Island since 2012, to fill a vacant judgeship in the federal District of Rhode Island. McElroy was an experienced, moderate nominee whom Democratic Senators Jack Reed and Sheldon Whitehouse strongly supported.
The Senate Judiciary Committee approved McElroy in January 2016 without dissent. Nevertheless, she languished until her nomination expired .... President Donald Trump should swiftly renominate her, and the Senate rapidly confirm her.
The district currently has one vacancy among three active judgeships.... Reed and Whitehouse have asked Trump to promptly nominate McElroy again, just as he recently renominated three other strong, mainstream Obama nominees who had earned committee approval like McElroy."
Confirm Judge Pan for D.C. District Court (Washington Post, 08/02/17)
Carl Tobias: In April 2016, then-President Obama nominated Florence Pan, who has served as a D.C. Superior Court Judge since 2009, for an opening on the D.C. District Court. Judge Pan is an experienced, moderate nominee who enjoyed the powerful support of Del. Eleanor Holmes Norton (D-D.C.). The Judiciary Committee reported Pan in mid-September. However, her nomination languished on the floor until Jan. 3, when the nomination expired because of Republican obstruction in refusing to accord her a confirmation debate and vote. Pan is a highly qualified, mainstream nominee and the D.C. District needs each of its vacancies filled, so President Trump must promptly renominate and the Senate must swiftly approve her.... Norton should urge Trump to promptly nominate Pan, just as he recently renominated Judge David Nye and Dean Scott Palk — well qualified, mainstream Obama nominees who had previously earned committee approval, as did Pan.
Column: Renominating judges saves time, promotes bipartisanship (Detroit Free Press [MI] , 08/02/17)
Carl Tobias: The U.S. Senate last month unanimously confirmed Judge David Nye ... whom President Barack Obama had first nominated and Trump renominated. ... Several reasons support Trump’s selective renomination of the other Obama district nominees whose candidacies expired on Jan. 3.
First, this would conserve scarce resources that must be devoted to restarting the nomination process.... Second, renomination can be easily implemented by asking home state senators whether they support the nominees .... Third, there is compelling need to quickly fill the prolonged vacancies in 16% of district judgeships, and renomination is the only way to expeditiously confirm jurists. .... Fourth is fairness. Considerations unrelated to nominees’ qualifications — including the presidential election year, increased politicization and Republican obstruction of the 44 nominees — precluded their full Senate review. ... Finally, renominating Obama nominees would allow Trump to cultivate Democrats, whose cooperation will be important when filling the many vacancies. ... Clear illustrations are three nominees — two excellent Magistrate Judges and a talented litigator — for Florida Middle District emergency vacancies. Sens. Marco Rubio, a Republican, and Bill Nelson, a Democrat, urged Trump to renominate them in March. The three superb, mainstream Western District of Washington nominees are similar. Democratic Sens. Patty Murray and Maria Cantwell reproposed the designees.
Another Voice: Renominate Sweet for federal court (Buffalo News [NY], 07/27/17)
Carl Tobias: On March 15, 2016, President Barack Obama nominated Kathleen Sweet, a longtime Western District of New York legal practitioner to an empty seat on that federal court. She is a very qualified, moderate nominee with the powerful support of New York Democratic Sens. Chuck Schumer and Kirsten Gillibrand. The Senate Judiciary Committee approved Sweet on a voice vote last September with no dissent.
Nonetheless, her nomination expired Jan. 3 because Republican obstruction denied her nomination debate and a vote. Because Sweet is a highly qualified, mainstream nominee and the Western District of New York requires this vacancy to be filled, President Trump must promptly renominate, and the Senate must swiftly confirm, her.... Sens. Schumer and Gillibrand should urge President Trump to promptly nominate Sweet again, just as he recently renominated Judge David Nye and Dean Scott Palk, well-qualified, mainstream Obama nominees who had previously earned committee approval like Sweet.
Renominate Gallagher for the District of Maryland (Washington Post, 07/11/17)
Carl Tobias: In September 2015, then-President Barack Obama nominated Stephanie Gallagher, a magistrate judge in the U.S. District Court of Maryland since 2011, to a vacancy on this court. Gallagher is an exceptionally qualified, moderate nominee whom Sens. Barbara Mikulski and Benjamin L. Cardin, both Democrats, powerfully supported. In May 2016, the Senate Judiciary Committee approved Gallagher without dissent.
Nonetheless, her nomination languished on the floor until Jan. 3 when her nomination expired, a result attributable to GOP obstruction in refusing to grant her a final debate and vote. Because Gallagher is an experienced, mainstream nominee and the District of Maryland requires all of its judges, President Trump must swiftly renominate and the Senate should promptly confirm the jurist.... Cardin and Sen. Chris Van Hollen, who was elected in November after Mikulski’s retirement, should urge Trump to swiftly nominate Gallagher again, just as the chief executive recently renominated Judge David Nye and Dean Scott Palk, well qualified, mainstream Obama nominees who had enjoyed 2016 panel approval similar to Gallagher.
Why Trump should renominate Inga Bernstein for the District of Massachusetts (The Hill, 07/05/17)
Carl Tobias: The Senate Judiciary Committee approved Bernstein on a May 2016 voice vote without dissent. However, she languished on the floor all year until her nomination expired on January 3, primarily because Republicans denied her a confirmation debate and vote. Because Ms. Bernstein is a talented, moderate nominee and the District of Massachusetts requires all of its judges, President Donald Trump should renominate her and the Senate must promptly confirm Bernstein…. Bernstein’s re-nomination and confirmation can be achieved easily. The Massachusetts senators must urge President Donald Trump to promptly nominate Bernstein again, just as he recently renominated Judge David Nye and Dean Scott Palk, well qualified, mainstream Obama nominees, who had earned 2016 committee approval like Bernstein.
Trump’s first judicial nominees: a right-wing blogger, an anti-gay lawyer, and two Obama holdovers (Quartz, 06/21/17)
Lola Fadulu: Many of these seats are vacant because the Republican-controlled Senate refused for several years to start the nomination process for president Barack Obama’s nominees, often after state senators vetoed the candidates. ... Civil rights advocates say some of Trump’s early nominees are troubling because they lack diversity, both racially and professionally. ... John Kenneth Bush is Trump’s nominee for the Sixth Circuit.... While blogging, he consistently cited WorldNetDaily, a group the Southern Poverty Law Center has deemed an extremist group for peddling conspiracy theories and white nationalism, including the lie that Obama was not born in the United States.... Damien Schiff, Trump’s nominee for the US Court of Federal Claims, called Supreme Court justice Anthony Kennedy a “judicial prostitute” in a post.
Schiff also strongly disagreed with the Supreme Court’s decision in Lawrence v. Texas, which ended punishment for sodomy. And he criticized a school district for teaching students that homosexual families and heterosexual families are equally moral.... Trump’s nominees include two Obama nominees, David C. Nye and Scott L. Palk, whose appointments expired
Trump Is Going to Lose It When He Finds Out About This Obscure Senate Rule (New York Magazine, 05/08/17)
Ed Kilgore: Current Judiciary Committee Chairman Chuck Grassley, like his immediate Democratic predecessor Pat Leahy, has been a staunch defender of the blue slip tradition. ... Both Stras and Larsen are from states with two Democratic senators ... Grassley and other Republicans will have to decide whether their short-term interest abolishing the blue slip tradition outweighs their long-term interests in maintaining it for use against future Democratic presidents. And Democrats may figure out ways to use blue slips carefully and strategically to resist an ideological overhaul of the federal courts without unduly provoking Grassley
My Trump agenda for Day 101: ... federal judge vacancies (Idaho Statesman, 04/28/17)
Robert Ehlert, Idaho Statesman's editorial page editor, column: Idaho federal judge ‘emergency’ On April 5, 2016, President Barack Obama nominated 6th District Judge David Nye to serve on the federal court in Idaho. That was over a year ago .... Under the supportive sponsorship of Crapo and Risch, Nye was later approved by the Senate Judiciary Committee, on which Crapo serves. But neither Nye nor any of the other 127 federal vacancies got filled by the end of Obama’s term due to partisan squabbling that included Republicans’ refusal to even consider Judge Merrick Garland’s nomination to the Supreme Court. ...Crapo and Risch said Thursday that they had received assurance that Nye would be among the first judges nominated by Trump. ... We still need to see the official nomination, and then see Nye navigate the process to confirmation. Until then, any idea of prompt federal justice in Idaho suffers because Judge B. Lynn Winmill can handle only so many cases.
Many believe Idaho is deserving of a third federal judge position, but that expansion would have to be approved by Congress. Given how long it has taken so far to replace just one judge, I’ll settle for putting Nye to work for now.
Senators Want President Trump to Re-Nominate their Judicial Nominees: Both Democrats and Republicans think the president should select nominees who never got a vote in the last session of Congress. (Medium, 04/21/17)
"These judicial nominees were all unanimously approved by the Senate Judiciary Committee, but none received a vote on the Senate floor before their nominations expired. Now, their home-state senators want Trump to re-nominate them.
“Sen. Toomey believes it is crucial to place a sitting judge at the federal courthouse in Erie, which has remained vacant for years,” his spokesman said in February. “He believes that Judge Baxter has the intellect, experience and integrity to serve as a federal judge.” A spokesman for Minority Leader Schumer said of Sweet that “Sen. Schumer continues to support her candidacy.” And a spokesman for Sen. Mike Crapo, who now sits on the Senate Judiciary Committee, said earlier this year that “We’re really going to work hard on Nye.”... Senators who had nominees pending in the Senate Judiciary Committee would also like to see their nominees re-nominated. In Florida, Sens. Bill Nelson, a Democrat, and Marco Rubio, a Republican, want their three nominees to the Northern and Middle Districts re-nominated by Trump. In Washington, Sens. Patty Murray and Maria Cantwell want the president to choose from nominees put forward last April by a bipartisan judicial selection committee comprised of three Democrats and three Republicans. Obama nominated three of the committee’s five picks to the Western District of Washington, and Murray and Cantwell, both Democrats, want the same list used this time around.... And there’s certainly precedent for re-nominating.
In March 2009, all 41 Senate Republicans wrote a letter to President Obama about the judicial nominations process. “First, in the beginning of his Administration, your predecessor demonstrated his desire to improve the judicial confirmation process by nominating to the circuit courts two of President Clinton’s previous judicial nominees, Judge Barrington Parker to the Second Circuit Court of Appeals, and Judge Roger Gregory to the Fourth Circuit Court of Appeals,” the Senate Republicans noted to Obama. “It would help change the tone in Washington if your Administration would take the same bipartisan step.” ... Obama did work closely with Republican senators to fill judicial vacancies, and Chairman Leahy, without exception, required that both home-state senators return their blue slips before moving forward on any lower court nominee. He even did this against the wishes of then-Senate Majority Leader Harry Reid, D. Nev., when Sen. Dean Heller, R. Nev., refused to return his blue slip for a district court nominee named Elissa Cadish.
“Despite press reports that the Chairman of the Judiciary Committee now may be considering changing the Committee’s practice of observing senatorial courtesy, we, as a Conference, expect it to be observed, even-handedly and regardless of party affiliation,” the Republicans wrote in 2009."
Democrats Must Do What They Can to Protect the Supreme Court and the Nation (People For blog, 01/19/17)
Paul Gordon: In a sharp departure from the norm, Trump last year essentially delegated authority for selecting potential justices to right-wing groups like the Heritage Foundation and the Federalist Society.... Yes, there is a vacancy on the Court, but there shouldn’t be. ... It exists only because Senate Republicans took the unprecedented step of refusing to consider President Obama’s nominee, D.C. Circuit Chief Judge Merrick Garland. ... During Obama’s first term and into his second, the number of judicial vacancies skyrocketed, not because there weren’t nominees, but because Republicans blocked votes indiscriminately. ... Majority Leader McConnell ended the year without allowing the Senate to vote on the 23 circuit and district court nominees who had been languishing on the Senate floor for many months, sometimes for over a year, after having been thoroughly vetted and approved by the Judiciary Committee.
Confirm Inga Bernstein for the District of Massachusetts (The Hill, 01/13/17)
Carl Tobias: On July 30, 2015, President Barack Obama nominated Inga Bernstein, a longtime private practitioner, for a judicial vacancy on the District of Massachusetts. Bernstein is a well qualified, mainstream nominee who enjoys the powerful support of Massachusetts Democratic Sens. Elizabeth Warren and Ed Markey. The Senate Judiciary Committee approved Bernstein on May 19, 2016 without dissent. Nonetheless, she languished on the floor ever since, mainly due to GOP leaders’ refusal to allow her confirmation debate and vote. Because Ms. Bernstein is an experienced, moderate nominee and the District of Massachusetts needs this vacancy filled, the Senate must swiftly hold her final debate and vote.... Warren and other Democratic senators requested unanimous consent to vote on Bernstein and nineteen remaining district nominees who need floor votes, but the GOP objected.
Opinion: Anti-Obama Republicans have created a judicial emergency (Los Angeles Times, 01/07/17)
Carl Tobias: The Times editorial board accurately describes the severely deteriorated state of federal judicial selection and suggests that Republican obstruction during President Obama’s two terms in office is substantially responsible for the 100-plus current vacancies.... Indeed, the U.S. 9th Circuit Court of Appeals currently has four openings, all of which have been declared judicial emergencies. The editorial astutely states that Democrats could retaliate by similarly obstructing President-elect Donald Trump’s nominees. It also correctly observes that Trump could and should “make a significant gesture toward restoring a measure of normality” to the selection process by renominating the Obama nominees left stranded by GOP obstruction to be confirmed with bipartisan approval by the Senate Judiciary Committee. However, Obama can and should re-submit those nominees now, and the Senate should confirm them immediately.
Fix nation's judicial staffing crisis (Detroit Free Press [MI] , 01/07/17)
Carl Tobias, Op-Ed: On Tuesday, when the 114th Congress adjourned, the nominations of 51 individuals whom President Barack Obama selected for the circuit and district courts expired. Now that the new Senate has convened, Obama should attempt to fill some of the 104 vacancies, 42 of which are “judicial emergencies,” by renominating numerous well-qualified, mainstream nominees and urging their prompt Senate confirmation.... Obama must quickly renominate the 20 well-qualified, mainstream district nominees the Senate Judiciary Committee approved without dissent. GOP senators proposed and supported most, and they have languished for months. Obama should also seriously consider renominating the three outstanding circuit nominees who earned panel approval. If renominated, the chamber must promptly vote on all of these nominees.
The Senate lacks time to process the remaining 28 nominees before Trump’s inauguration, but he must consider nominating again strong, consensus nominees who possesses GOP support.
[Editorial] Will Trump try to stack the courts? (San Francisco Chronicle [CA], 01/06/17)
"It’s no mystery why nearly one in eight federal bench slots is empty. Republicans have refused to vote on dozens of President Obama’s nominees .... The vacancies are nearly double the amount that Obama inherited from George W. Bush. The unfilled posts have created a logjam .... By Senate custom, court nominees must pass muster with home state senators. In California’s case this process is especially weighty. The federal appeals court in San Francisco has four vacancies, and six district judgeships are empty across the state. ... Given this “blue slip” process of vetting, the state’s senators, Dianne Feinstein and Kamala Harris, can block a White House nomination. ... During the Bush administration, the differences were negotiated"
Mitch McConnell's Political Moves Are Appalling, But Democrats Could Learn from Them (Esquire, 01/05/17)
Jack Holmes: The Lord of Obstruction had a message for Senate Democrats on Wednesday: No obstructing unless I'm the one doing it. Senate Majority Leader Mitch McConnell, who, after Antonin Scalia died with nearly a year left in President Obama's term declared that he would refuse to give any Supreme Court nominee a hearing, held a press conference following Minority Leader Chuck Schumer's pledge to contest Donald Trump's Supreme Court nominations. McConnell had a stern message for his opponents in The World's Greatest Deliberative Body: "The American people simply will not tolerate" any attempt to block SCOTUS appointees. The cynicism here is breathtaking. ... To be clear, McConnell's rhetoric here was disingenuous.... Republicans embarked on an unprecedented campaign of obstruction, particularly with regard to judicial appointees,... If Democrats are going to survive, they need to ditch the weird worshipping of civility and learn to punch someone in the jaw. The Supreme Court nomination process—and the hearings for cabinet appointees like Jeff Sessions—would be a good place to start throwing a few jabs.
[Editorial] Fill the courts: Federal vacancies delay justice for all (Pittsburgh Post-Gazette [PA], 01/05/17)
Editorial Board: the four vacancies in the U.S. District Court for the Western District of Pennsylvania are the most anywhere. Across the nation, however, there are 112 vacancies, the highest profile being the empty seat on the Supreme Court left by the Feb. 13 death of Justice Antonin Scalia. There are also 86 vacancies in district courts, 17 in circuit courts of appeals, six in the Court of Federal Claims and two in the Court of International Trade.
Worse, only 59 candidates have been nominated for the vacancies, meaning there would be no quick way to fill nearly half of those seats even if the partisan bickering were to cease immediately. Forty-one courts have what are called “judicial emergencies”.... None of that takes into account what some observers believe is a pressing need for additional judges in parts of the country.... In Pennsylvania, Sens. Pat Toomey, a Republican, and Bob Casey, a Democrat, are known for collaborating on the selection of judicial nominees — and they plan to continue their collaboration. Mr. Casey’s office said the nominees are in limbo because the GOP leadership wouldn’t bring them to a vote.
Vacancies slow cases, dragging out justice for victims and hampering the fortunes of companies involved in contract or intellectual property disputes.
Confirm Judges Horan and Baxter for the Western District of Pennsylvania (The Hill, 01/03/17)
Carl Tobias: On July 30, 2015, President Barack Obama nominated Susan Paradise Baxter, who has served as a Magistrate Judge in the Western District of Pennsylvania for more than twenty years, and Marilyn Horan, who has served as a Court of Common Pleas Judge in Butler County since 1996, for vacancies on the Western District. The jurists are highly qualified, mainstream nominees, who possess the strong support of Pennsylvania Sens. Bob Casey (D) and Pat Toomey (R). The Senate Judiciary Committee reported both on Jan. 28 voice votes with no dissent. Nonetheless, they languished on the floor since then, primarily because Republican leaders refused to grant them final debates and ballots. Since Judges Baxter and Horan are experienced, moderate nominees and the Western District of Pennsylvania requires all of its vacancies filled, the Senate must expeditiously arrange their confirmation debates and votes.... Democratic senators proffered analogous requests on nineteen remaining district nominees who required final votes, but other members objected.
Reshaping the courts: Donald Trump is poised to paint America’s judiciary red, Democrats may soon lose their dominance in district courts (Economist, 01/03/17)
"Trump’s quest to hold back liberal-leaning courts faces potential stumbling blocks. With Republican intransigence over Merrick Garland, Mr Obama’s Supreme Court pick, leaving a bad taste in Democrats’ mouths, the minority party is likely to use any and all obstructionist tactics available to them under obscure Senate rules to delay or thwart votes on judicial nominees. One possibility is that Democrats may weaponise the norm of senatorial courtesy, an unwritten but well-entrenched principle preventing the Senate from acting on any nominee who does not enjoy the support of both senators from his or her home state.
This courtesy, in one form or another, “has persisted since the presidency of George Washington”, according to Tonja Jacobi, a law professor at Northwestern University."
Editorial: Another judicial dirty trick from Senate Republicans (Los Angeles Times, 01/03/17)
"One of 2016’s most spectacular examples of government dysfunction was the U.S. Senate’s outrageous refusal to consider President Obama’s nomination of Judge Merrick Garland to replace the late Antonin Scalia on the Supreme Court. ... the Senate also failed to hold floor votes on  Obama nominees for lifetime federal judgeships who had been cleared by the Senate Judiciary Committee. ... Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee, accused Senate Republicans of setting a “record for inaction on judicial nominations.” Whereas a Democratic-controlled Senate confirmed 68 of George W. Bush’s judicial nominees in the last two years of his presidency, only 22 Obama nominees have been confirmed in the comparable period, ... As with Senate Majority Leader Mitch McConnell’s stonewalling of the Garland nomination, the failure to act on these lower-court nominations is extreme and inexcusable.... It would be utterly understandable if Senate Democrats now retaliated by making it difficult for President-elect Donald Trump to win confirmation for his judicial nominees, especially those slotted for seats that Obama had every right to fill. ... Trump can make a significant gesture toward restoring a measure of normality to the confirmation process. He should resubmit the names of the nominees who received bipartisan support on the Judiciary Committee but were left stranded because of the delaying tactics of his fellow Republicans."
What Democrats Must Do To Stop A Right-Wing Hijacking Of The Judiciary (Huffington Post, 01/02/17)
Robert Creamer: when the Senate left Washington for the holidays, 25 Obama court nominees were actually pending on the Senate floor, after having been approved out of committee with bi-partisan support, but none got a vote before the Senate adjourned.
Most outrageous, the right is trying to steal a Supreme Court seat that should have been filled by President Obama and hand it to Donald Trump.... For any nomination to the Garland seat on the Supreme Court, and for the first 100 vacancies to the lower courts, Democrats should use one simple criterion for approving any nominee:
Would the nominee be similar to those who would have been proposed by Barack Obama?
If the answer is no, Democrats in the Senate should simply refuse to vote yes – ever.... under the Constitution, these vacancies should have been filled by President Obama, and were instead, stolen by the GOP leadership through unprecedented obstruction and refusal to do their job.
Roberts' 'Missed Opportunity' on Judicial Vacancies (Jost on Justice: Law & Justice Blog, 01/01/17)
Kenneth Jost: When President Franklin D. Roosevelt proposed his notorious court-packing scheme in 1937, Chief Justice Charles Evans Hughes delivered the fatal blow to the plan.... Eight decades later, Senate Republicans played politics with the court in a different way last year by refusing to consider President Obama's nomination of the veteran federal judge Merrick Garland .... But Roberts stayed completely silent even as the unfilled vacancy left four significant cases partly unresolved .... Senate Republicans extended their obstructionist policies to the lower federal courts by all but shutting down the confirmation process for Obama's nominees to district court and circuit courts of appeals. As the year ended, federal courts had an historically high number of 107 vacancies, including 84 district court judgeships and 14 on circuit courts. Obama had submitted nominees for 84 of the positions, and the Senate Judiciary Committee had approved 25 for floor votes. But all were left hanging as the 114th Congress was set to expire .... The year-long slowdown on Obama nominees for the lower federal court leaves almost exactly twice the number of vacancies that Obama inherited at the end of George W. Bush's presidency. Sheldon Goldman, a professor at the University of Massachusetts-Amherst and the leading academic expert on federal judicial appointments, calls the Senate's record over the past two years "the worst in American history in terms of obstruction and delay."... Roberts might have said at least a word or two about the fighting over the vacancies, but never did
Editorial: Will Grassley pick up speed on Trump nominees? (Des Moines Register [IA], 01/01/17)
"The Senate confirmed 20 lifetime judicial appointments to district and appeals courts in the two years Republicans were in charge. That’s the lowest number in 28 years, according to a Congressional Research Service report and Politico. (It’s not even close: The next fewest number was 51, during the Republican-led Senate of 2005-06.)
The result of that inaction? There are about 100 vacancies in federal district and appeals courts, plus the opening on the U.S. Supreme Court that Grassley stood in the way of filling.
Grassley and his fellow Republicans have handed an inaugural gift to President-elect Donald Trump, who can shape the federal courts in his image. He’ll have almost double the number of openings to fill than Barack Obama did eight years ago.... Republicans successfully ran out the clock on 54 of Obama’s nominees. Of those, 25 made it out of Grassley’s committee, but Senate Majority Leader Mitch McConnell refused to hold votes on them. These 25 were thoroughly vetted and won bipartisan support, yet McConnell shamelessly prevented any votes for more than a year.
In addition, eight nominees were waiting to be reported out of the Senate Judiciary Committee and 21 were waiting for committee hearings.... Grassley has considered only nominees who had won support from both of their home-state senators. Both parties have used that practice, he points out.
But this practice has contributed to gridlock. An opening on the U.S. Court of Appeals for the 7th Circuit has been vacant since 2010, because Republican senators have blocked Obama’s appointees.
A district judge position in the Eastern District of North Carolina has gone unfilled since Jan. 1, 2006. More than a quarter of the district’s population is African-American, but it’s never had a black federal judge, according to Raleigh News & Observer. Obama had nominated two African-American women to the eastern district, but Sen. Richard Burr, R-N.C., supported neither.
Obama made it a priority to bring diversity to the courts. Those who weren’t confirmed by the Senate included several Latino, Asian-American and black judges and one who would have been the nation’s first Muslim federal judge.
If our courts are to reflect and represent those whom they serve, then Trump should continue Obama’s efforts. The new president should seek racial, ethnic, religious and gender balance when he searches for nominees.... The gears of justice grind more slowly when judicial positions remain open. This has a real impact on people and businesses waiting for their cases to be heard. The U.S. court system now counts 38 judicial emergencies, based on the volume of cases in front of a court. There were 12 such emergencies at the beginning of 2015."
Here are New Year’s resolutions for the folks in charge as 2017 unfolds [Editorial] (Idaho Statesman, 12/31/16)
Editorial Board: here are a few of the New Year’s resolutions we propose for our community, state and nation as 2017 unfolds.... Resolutions at the federal level
▪ Federal judicial appointments for Idaho and elsewhere in the nation succumbed to gridlock politics last year and throughout the last Congress. Our senators must get to work and get Judge David Nye’s name before President-elect Donald Trump so he can again be nominated, and then confirmed by the Senate. While they are at it, our senators need to figure out how to get Idaho a badly needed third Article III judge. Justice demands it.
Tobias letter: Confirm David Nye (Idaho Statesman, 12/24/16)
Carl Tobias: “While gridlock grinds in Washington, justice suffers in Idaho” (editorial, Dec. 11) astutely describes and decries the Senate’s utter failure to remedy the vacancy crisis that now plagues the District of Idaho and individuals and businesses engaged in federal court litigation. The Senate must confirm David Nye, an experienced Idaho state trial court judge, whom home state senators proposed and support and President Barack Obama nominated many months ago.... The Judiciary Committee ought to promptly reapprove the nominee and the Senate should swiftly confirm him. If those actions are not taken, the Idaho senators must recommend Nye again to President Donald Trump, who must quickly renominate Nye and the Senate needs to rapidly process him.
Carl Tobias: Senate must vote on Idaho judge (Spokesman-Review [Spokane, WA], 12/11/16)
"On April 6, President Barack Obama nominated David Nye, a state court judge in Idaho, for a vacancy on the U.S. District Court. Nye is a well-qualified, mainstream nominee who enjoys the powerful support of Idaho Republican Sens. Mike Crapo and James Risch.
The Senate Judiciary Committee approved Nye on July 14 without dissent. However, the nomination has languished on the floor ever since, principally due to GOP leaders’ refusal to allow his confirmation debate and vote. Because Nye is an experienced, consensus nominee and the district desperately needs this vacancy filled, the Senate must promptly conduct his final debate and vote.
The Idaho district has one vacancy in two active judgeships.... The federal court system declared Lodge’s vacancy a “judicial emergency” .... Nye and many other highly qualified, moderate nominees have waited months for debates and votes. The Republican Senate majority has refused to even consider Judge Merrick Garland, the experienced, mainstream Supreme Court nominee .... Sens. Crapo and Risch have requested a swift floor ballot for Nye, yet Sen. Mitch McConnell, R-Ky., the majority leader, has failed to arrange it. Several Democratic senators have sought unanimous consent to vote on many district nominees who need final votes, but Republicans have objected. ... The Idaho senators have constantly reiterated their support for Nye, even after the election, expressing hope the Senate would confirm him in the lame duck session that opened Nov. 15 and pledging to push for renomination if that did not happen. The Idaho director of the Trump for President campaign believed that “Trump would support” the senators’ process and Nye. Thus, it would be wasteful to restart the process and deprive Idaho of a new judge for months."
While gridlock grinds in Washington, justice suffers in Idaho [Editorial] (Idaho Statesman, 12/11/16)
Editorial Board: the fate of Pocatello’s David C. Nye, whom President Barack Obama nominated back in April to a federal judgeship in the District of Idaho.
Within days of that nomination our two Republican Senators, Mike Crapo and Jim Risch, chimed in and agreed with their Democratic president that Nye — now serving in the Sixth District Court of Idaho — was an excellent choice and ought to be approved by the Senate.
Crapo and Risch introduced Nye to the Senate Judiciary Committee back in June, and that body approved him on July 14 without dissent. Everybody, including us, is supportive of Nye, but nobody has been able to push him over the finish line and put him to work for Idaho –– who desperately needs him.
Idaho only has two such judgeships (and has a great argument for a third).... Nye, and many other judges awaiting confirmation by the Senate, languish in the kind of limbo that only gridlock can create.... Why not take 10 minutes to confirm Nye and others for the federal bench and allow them to get to work? Among the theories is that Senate Republican leadership and the rest of the world would be reminded of the GOP’s obstinance to not even consider Obama’s nominee to the U.S. Supreme Court, Merrick Garland.
We are unconcerned about face-saving –– and only hoping for justice, which will have to wait.
If 2016 ends without Nye’s confirmation, we’ll all have to pray that President-elect Donald Trump will re-nominate him in 2017 and he can come on board with Senate confirmation.