Editorials and Opinion
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"
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."
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."
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."
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."
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."
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."
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."
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."
It’s Not Just Merrick Garland: Republicans Are Blocking So Many Nominees It’s Caused a Judicial Emergency: The judicial confirmation rate under the Republican-controlled Senate is less than half of what it was when Democrats held power under George W. Bush. There are so few judges that it’s hurting the country. (Daily Beast, 05/16/16)
JAY MICHAELSON: "“It’s absolutely absurd,” Marge Baker, executive vice president of liberal group People for the American Way (PFAW) told The Daily Beast. PFAW has been tracking the issue closely and released new findings this week. “And it’s qualitatively different from anything that has gone before.”... Over the past sixteen months, the Senate has confirmed 17 lifetime-appointment judges. In the same period in 2007-08, the Democrat-led Senate confirmed 45; in 1991-92, when Democrats controlled the Senate and George H.W. Bush was president, it confirmed 82. In other words, the GOP Senate is confirming just 38 percent as many judges as the Democratic 2008 Senate, and 21 percent of the Democratic 1992 one.... PFAW’s own analysis, released this week, revealed that under Grassley’s leadership, the judicial confirmation rate has been 25%. Leahy’s was 58%. A recent PFAW press release dubbed Grassley the “Do-Nothing Chairman.” ... Baker told The Daily Beast that the truly shocking inaction is on lower court nominations.
“I’ve been following this issue for thirteen years,” she said. “District court vacancies were never in play—they were routine. But now, the obstructionism has gotten down to the district court level.”
A similar point was made in a New York Times op-ed by the recently retired Judge Shira Scheindlin .... Indeed, the number of “Judicial Emergencies”—a formal designation by the federal court system for when the per-judge caseload is so high that it endangers access to justice—has nearly tripled in the last two years, from 12 in January 2014, to 32 in April 2016.
By way of comparison, there were 19 such judicial emergencies at this point in George W. Bush’s second term—and the number had gone down since the Democrats took control of the Senate."
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."
Toomey two-faced on federal judge vacancies | Editorial (Express-Times [PA], 05/15/16)
"Pat Toomey can't have it both ways.
This week Pennsylvania's junior senator made a request of Senate Majority Leader Mitch McConnell: Call a vote to allow the Senate to act on the appointments of two federal judge nominees in western Pennsylvania, for seats that been unfilled for years....The sand-in-the-gears approach to elevating federal judges isn't just a hindrance to justice, it's a disgrace.... there is no federal judge in the entire northwest corner of the state.... This a problem for the entire country, not just Pennsylvania. And it's beyond hypocritical of Toomey to expect that any judge deserves special treatment when he and most other GOP senators are blocking hearings — much less an up-or-down vote — on President Obama's choice of Judge Merrick Garland to replace the late Antonin Scalia on the U.S. Supreme Court.... McConnell made it clear to Toomey that Pennsylvania isn't going to cut in line. Nine other judges cleared by the Senate Judiciary Committee have been in the pipeline longer than the Pennsylvania nominees.... if Toomey wanted to make a sensible pitch for fair play he could have done what Sen. Bob Casey did — call upon McConnell to schedule votes for all the federal judge candidates who have committee approval.... the business of the courts — which, while it can't be totally depoliticized, would be improved greatly by respecting the Constitution and acting on federal judge nominees who are ready to go."
Sen. Pat Toomey’s hypocrisy about judges is clear (Pittsburgh Post-Gazette [PA], 05/15/16)
John Neurohr, Letter to the Editor: "Sen. Pat Toomey, feeling the pressure from constituents, decided to try to save political face by attempting to move two Pennsylvania U.S. District Court nominees to the Senate floor for a vote ahead of other stalled nominees who have also been blocked by Senate GOP leadership.... From facilitating Senate GOP leadership delay of the confirmation of Judge L. Felipe Restrepo for a seat on the 3rd U.S. Circuit Court of Appeals to delayed action on the five current District Court vacancies in Pennsylvania and one current 3rd Circuit Court vacancy, Mr. Toomey has not been doing his job on judicial vacancies for years. Add to this the fact that Mr. Toomey has joined the politically motivated, unprecedented stonewalling of President Barack Obama’s Supreme Court nominee, Merrick Garland, and the irony of his sudden prioritization of judicial nominees is pretty apparent.
What needs to happen is Senate Republicans should allow all District Court nominees currently in limbo to have an up-or-down vote immediately. If Mr. Toomey is feeling the pressure to do his job and move nominees, he ought to pressure Republican leadership to do it the right way."
Sen. Burr’s absurd blockage of a home-state judge (Daily Reflector [Greenville, NC], 05/15/16)
Chris Fitzsimon Op-Ed: "An African-American has never served as a federal judge in the Eastern District of North Carolina and Sen. 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."
Letter: Timmons-Goodson is qualified (Fayetteville Observer [NC] , 05/13/16)
Lena Johnson: "In April, President Obama nominated Justice Patricia Timmons-Goodson to serve as a federal judge for the Eastern District of North Carolina. Sen. Richard Burr has vowed to block the nomination of this highly credentialed, highly respected public servant on local and national levels, and highly deserving woman. Sen. Burr, your constituents say, enough is enough with political shenanigans.
It's time to do the work you were elected to do for the good of the citizens of this state. This U.S. District judge position has been vacant for more than 10 years. The people in the Eastern District covering 44 counties deserve better than another lengthy, unnecessary delay."
Bill Straub: McConnell failed to spin his political magic, co-opt Tea Party wing of GOP in Senate (KyForward [Lexington, KY], 05/12/16)
"McConnell, seemingly not content to simply destroy the federal government’s legislative and executive branches, has taken a real sledge hammer to the judiciary. He remains steadfast in his refusal to consider Obama’s nominee to replace the late Justice Antonin Scalia, U.S. District Court Judge Merrick Garland, despite polls that show Americans overwhelmingly demand confirmation hearings.
Meanwhile, McConnell is stonewalling other federal judgeships.
“The Senate has not confirmed a single judicial nominee in a month,’’ Sen. Patrick Leahy, D-VT, ranking member of the Senate Judiciary Committee, said on Tuesday. “Not one. And yet, Republicans continue to claim the Senate is back to work. When qualified nominees who were unanimously approved by the Judiciary Committee are left waiting for months, the Senate is not working. It is not fulfilling its constitutional role and it certainly is not doing the job of the American people who deserve prompt justice in our courts.”"
Pat Toomey Tries To Skip The Line And Only Confirm His Judicial Nominees: It didn’t really work out. (Huffington Post, 05/11/16)
Jennifer Bendery: "They are two of 11 judicial nominees ready to be confirmed, but the Senate is barely moving because of McConnell, who is loath to allow votes on any more Obama nominees.... The problem with his request is that eight other district court nominees are in line ahead of his, and traditionally, the Senate confirms them in the order that they arrive from the Judiciary Committee. That means Toomey was asking to make all of those nominees — including those from GOP states like Tennessee and Nebraska, and those that would fill judicial emergencies — wait longer"
Chuck Grassley, The Do-Nothing Chairman (People For blog, 05/11/16)
"Grassley’s committee has confirmed circuit and appellate judges at a glacial pace, especially when compared to a similar period during Senator Patrick Leahy’s chairmanship.... By the end of April 2008, Leahy had worked to confirm 45 judges with only 32 nominations remaining before the Senate. Three of these pending nominees had already cleared the committee and four had already received committee hearings. This means that no action had been taken on just 25 nominations.
During the comparable time period between January 2015 and April of this year, Grassley has only managed to confirm 17 nominees, barely a third the number of Patrick Leahy under George W. Bush. Fifty-two of President Obama’s judicial appointments are still pending. Of these, 12 have cleared the committee, and hearings have been held for an additional 6, leaving 33 with no action having been taken.
In the first 16 months of his tenure as Judiciary Committee chairman, Leahy managed to confirm 58% of George W. Bush’s nominees. On the other hand, Grassley has managed to confirm only 25% of Barack Obama’s."
It's time for Burr to simply do his job (Franklin Times [Louisburg, NC], 05/11/16)
Letter to the Editor: "Last week, Sen. Richard Burr had the opportunity to rise above the typical partisan politics that defines Congress by supporting Patricia Timmons-Goodson's nomination to fill the long-vacant seat on the U.S. Eastern District of North Carolina federal district court."
Letter: Judicial appointments are mired in politics (Times-News [Burlington, NC], 05/10/16)
Glenn Sugameli heads the nonpartisan Judging the Environment judicial nominations project: "Based on my 15 years of tracking federal judicial vacancies and nominations, I offer some national and historical context on your persuasive editorial ... . Justice delayed will continue to be justice denied for North Carolina people and businesses, as U.S. Sen. Richard Burr blocks former N.C. Supreme Court Justice Patricia Timmons-Goodson’s nomination to the Eastern District of North Carolina trial court. In addition to her “bonfides” you cite, the American Bar Association gave Timmons-Goodson’s nomination its highest rating: unanimously well-qualified.
Senator Burr previously blocked, without explanation, President Obama’s first nominee, who Sen. Burr had recommended, for the same vacancy. Empty for more than a decade, it is the nation’s oldest vacancy by more than four years, and the U.S. Courts have declared it a “judicial emergency.”... Senator Burr’s position, however, is in stark contrast to his fellow Republican senators from Mississippi to Wyoming who have worked with the White House to fill all judgeships in their states, and to many more who are continuing to do so. My nonpartisan website has compiled statements by Republican Senators from 14 States supporting pending nominees and urging action to fill their judicial vacancies.
Sadly, Senate Majority Leader Mitch McConnell (R-Ky.) is denying a hearing on Chief Judge Merrick Garland’s Supreme Court nomination, and delaying floor votes on 20 judicial nominees the Judiciary Committee approved unanimously months ago."
Eva Clayton: Eastern North Carolina deserves to have a federal court judge (News & Observer [NC], 05/09/16)
Former Congresswoman Eva Clayton: "When I heard that President Obama had nominated Patricia Timmons-Goodson to fill the long-vacant seat on the U.S. Eastern District of North Carolina federal district court, my heart rose. “Finally,” I thought.
After 10 years of waiting, the people of Eastern North Carolina would have a justice of whom we could all be proud. ... The first African-American woman to serve on the North Carolina Supreme Court was now going to be the first African-American judge to serve the Eastern District of North Carolina.... Burr. It is his job to consider judicial nominees, yet almost immediately after Timmons-Goodson’s nomination was announced Burr said he would block it. No vote. No hearing. Not so much as a meeting.
Burr has justified his blocking of the U.S. Supreme Court nominee by saying the American people deserve to have a say so we must wait until after the 2016 presidential election. But in the case of Timmons-Goodson, the people of North Carolina did have their say – twice – and they chose her."
Burr’s absurd blockade of a judge in his home state (Triangle Tribune [NC], 05/09/16)
by Chris Fitzsimon, Columnist: "An African-American has never served as a federal judge in the Eastern District of North Carolina. 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."
Get to work, senator (Wilmington Star-News [NC], 05/08/16)
Letter to the Editor by Susi Hamilton, N.C. House of Representatives: "Sen. Richard Burr is not doing the job we are paying him to do when he refuses to even consider judicial nominees.
Burr swore an oath to support and defend the Constitution, which includes the important role of considering judicial nominees to federal courts. However, he refuses to honor that oath by vowing to block the appointment of Patricia Timmons-Goodson, a woman who was elected twice to statewide office and served as the first African American woman on the N.C. Supreme Court, to the federal court.
Our Eastern District seat has been vacant for over a decade.... Do your job, Sen. Burr. Give Patricia Timmons-Goodson a vote."
Senate Republicans Are Breaking Records for Judicial Obstruction: As President Obama enters his final months in office, dozens of seats on the bench will remain unfilled. (Mother Jones, 05/06/16)
Patrick Caldwell: "While Democrats have publicly hammered the GOP's refusal to consider Merrick Garland's nomination to the Supreme Court, Republicans have mounted an equally important, if quieter, effort to block President Barack Obama's nominees to other federal courts, creating widespread vacancies in courts across the country.... Since taking control of the Senate in early 2015, Republicans have confirmed only 17 federal judges, a historically low number. The Senate confirmed just 11 judges in 2015, the fewest since 1960. There have been only two appellate court judges approved since Republicans took control, with seven appeals court nominations left pending.... Republicans would have to go on a spree of votes for the rest of the year to match the 68 judges that President George W. Bush got through the Democratic Senate in the last two years of his presidency—38 of whom had already been confirmed by April 2008.
It's not for lack of nominees that the pace of confirmations has been so slow. There are 87 current vacancies and 61 judicial nominations... 20 nominations are languishing on the Senate floor ... the number of vacancies has been growing since the start of 2015, whereas Bush saw his vacancy rate decline over the equivalent period of his presidency."