Editorials and Opinion
Confirm Judge Koh for the Ninth Circuit (Washington and Lee Law Review, 12/08/16)
Carl Tobias: On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. ... Judge Koh is an exceptional, consensus nominee—and the Ninth Circuit must have its entire judicial complement to resolve promptly, inexpensively, and equitably ... Republican senators, however, did not cooperate, particularly after they had captured an upper chamber majority in the 114th Congress, a situation that this presidential election year significantly aggravates. The last section, therefore, proffers recommendations for Judge Koh’s approval.
Local View: America needs to fill judicial vacancies (Lincoln Journal Star [NE], 12/08/16)
CAROL BLOCH and REBECCA GONZALES: it would be unjustifiable to let the lame duck session go by without holding a vote on the 25 qualified nominees pending on the Senate floor. These nominations will terminate at the end of this Congress but the work has already been done – they’ve been vetted, voted out of the Senate Judiciary Committee with bi-partisan support, and have the support of their home state senators. Holding an up or down vote on these 25 pending nominees would take mere minutes and potentially fill so many of these long-vacant judgeships.
President Obama’s judicial nominees have been unfairly obstructed for an unacceptably long period of time, including the shameful acts by Senate leaders to allow a Supreme Court vacancy to exist for wholly partisan reasons. ... President Obama’s pick for the federal district court in Nebraska, Judge Rossiter, was widely supported across the political spectrum and championed by our own Senator Deb Fischer.
Tobias: Senate should confirm Judge Lucy Koh before adjourning (San Jose Mercury News [CA], 12/08/16)
Carl Tobias: In February, President Barack Obama nominated Judge Lucy Haeran Koh for an emergency Ninth Circuit vacancy, praising her “unflagging integrity and evenhandedness.”
Since 2010, the jurist has ably resolved many critical disputes in the Northern District of California. However, 2016 is a presidential election year in which confirmations are delayed. Because Koh is an exceptional, mainstream nominee and the court needs its full complement, she warrants appointment before this Senate session ends.... This year, Obama has proffered seven highly qualified, mainstream circuit nominees, but none received a hearing until May 18 and none has realized appointment. That means the bench has 13 circuit, and 38 emergency, vacancies. Slow confirmations have adverse impacts, depriving courts of necessary resources and many litigants of justice.
Pass judicial nominees (Butler Eagle [PA], 12/08/16)
John Neurohr, Co-chair, Why Courts Matter-Pa., Letter to the Editor: As the U.S. Senate continues the lame-duck session, Senate leadership should schedule immediate confirmation votes on the 25 qualified judicial nominees pending on the Senate floor. Among these qualified nominees are Pennsylvania’s own Judges Susan Baxter and Marilyn Horan, who were nominated to fill district court seats that have been vacant more than three years.
Like Baxter and Horan, each of these nominees has been vetted and approved by their home-state senators and has earned the bipartisan support of the Senate Judiciary Committee. Millions of dollars have been spent vetting these nominees. Sen. Pat Toomey should now work with Senate leadership to schedule up-or-down votes on the pending nominees before the end of the 114th Congress.
It isn’t just Pennsylvania. More than one tenth of federal judgeships are vacant nationally, meaning that cases go unheard, issues unresolved and American people and businesses are left without the justice they deserve. These vacancies will remain open for far, far longer if other nominees are selected to fill them.
Under Trump, the Federal Courts Will Be Up For Grabs (New York Times, 12/08/16)
Linda Greenhouse column: the Supreme Court nomination, crucial as it is, is the tip of a very big iceberg. That high-profile nomination will mark only the beginning of the Trump administration’s effort to gain control of a federal judiciary that has gradually, almost imperceptibly slipped into Democratic hands during the Obama years.... the geographical distribution of Obama appointees is far from uniform, because of the power of individual senators to block nominations to judgeships in their states. Under the Senate’s “blue slip” tradition, a state’s two senators must both indicate in writing their acceptance of a nomination before the Judiciary Committee will even schedule a hearing. ... Russell Wheeler of Brookings calculated how many judges now serving on the circuit courts would be eligible for senior status by 2020. The total was 98 of the 179 judgeships on those courts. Of the 98, 48 are Democratic appointees. “If Trump replaced all 48 eligible Democratic appointees, every court of appeals would become a Republican-appointee majority court,” Mr. Wheeler wrote. He added “that’s not going to happen” — presumably because many of those newly eligible judges would choose to remain in active service for years to come. On the federal districts courts, 216 judges are currently eligible for senior status or will become eligible by mid-2020. Most of those, 61 percent, are Republican appointees;"
Senate Republicans Haven’t Confirmed A Single Judicial Nominee in More Than Five Months: At the expense of the American people, they’re leaving vacancies open for President-elect Trump to fill. (Medium, 12/08/16)
The Leadership Conference on Civil and Human Rights: There are 25 nominees waiting for a vote right now, and they’ve all been fully vetted, approved by their home-state senators, and voted out of the Senate Judiciary Committee with bipartisan support — all but two unanimously. They could all be confirmed in a matter of minutes. And if Senate Majority Leader Mitch McConnell doesn’t hold votes before adjourning for the year, the process will have to start all over again when President-elect Donald Trump takes office next year — all at the expense of the American people.
Since Republicans took control of the Senate in January of last year, judicial emergencies have more than tripled from 12 to 38. Confirming the 25 nominees pending on the floor would fill nine of those emergency vacancies, and it would also add a level of diversity to the federal judiciary. More than half of the nominees (14) are women, and many would make history if confirmed. Jennifer Puhl, nominated to the 8th Circuit, would be the first woman ever in North Dakota on the federal bench and would fill one of those emergencies. ... After the 2008 election, none of George W. Bush’s nominees were left stranded on the Senate floor. In fact, a Democratic Senate confirmed 68 of Bush’s lower-court nominees in the final two years of his administration. Today, Republicans shouldn’t be rewarded for obstruction, or for their postponement of justice for many Americans. Before adjourning for the holidays, they should give the nation a gift — a slightly better staffed federal bench, with fewer judicial emergencies — by holding votes immediately.
Carl Tobias: Stop delaying on judicial nominee (Gainesville Sun [FL], 12/07/16)
"On April 28, President Barack Obama nominated Philip Lammens, who has served as a U.S. magistrate judge since 2012 and as an assistant U.S. attorney from 2008 to 2012, for a vacancy on the Northern District of Florida.
Lammens is a well-qualified, mainstream nominee, who has the powerful support of U.S. Sens. Bill Nelson (D) and Marco Rubio (R) of Florida. Nonetheless, he has languished since April, mainly because Republican leaders did not grant him a Senate Judiciary Committee hearing, panel approval or a final debate and vote.
Because Lammens is an experienced, consensus nominee and the Northern District of Florida needs all of its vacancies filled, the Senate must promptly afford the nominee's hearing and committee ballot and his confirmation debate and vote.
The district now has two vacancies in four active judgeships."
Congress should fill judge vacancies during lame duck session (Baltimore Sun, 12/07/16)
Carl Tobias: The Senate has not approved a single federal judge since July 6, even though the bench currently experiences 96 circuit and district court vacancies (38 are "judicial emergencies"), and President Barack Obama has nominated 51 well qualified, mainstream candidates for the openings, 21 of whom the Judiciary Committee has approved without dissent. If the Senate confirms no one else, there will be more than 100 vacancies in 842 judgeships (13 percent) by January 20. Although Donald Trump won the presidency and the GOP retained its Senate majority, Republican and Democratic senators must collaborate to fill numerous vacancies before the members adjourn because the openings undermine justice.
LETTERS: Two OK judges should be confirmed (Stillwater News Press [OK], 12/07/16)
Carl Tobias: “Confirm two OK judges now (News Press editorial, Nov. 26) correctly states that Suzanne Mitchell and Scott Palk are well qualified, mainstream nominees for the District of Oklahoma who enjoy strong support from both Oklahoma GOP senators and who have been waiting months for a Senate confirmation vote because of Republican obstruction. Thus, the Oklahoma lawmakers must prevail on the leadership to provide Mitchell and Palk floor debates and votes swiftly after the lame duck session resumes this week and the Senate should confirm them before it adjourns.
Confirm Gary Richard Brown for the Eastern District of New York (The Hill, 12/07/16)
Carl Tobias: On July 30, 2015, President Barack Obama nominated Gary Richard Brown, who has been a U.S. Magistrate Judge in the Eastern District of New York since 2011, for a vacancy on that court. He is a well qualified, mainstream nominee, who enjoys the powerful support of New York Democratic Sens. Chuck Schumer and Kirsten Gillibrand. The Senate Judiciary Committee approved Brown on Nov. 5, 2015 without dissent. However, the nominee has languished on the floor ever since, primarily due to GOP leaders’ refusal to allow his confirmation debate and vote. Because Brown is an experienced, moderate nominee and the Eastern District of New York requires this vacancy filled, the Senate must swiftly conduct his final debate and vote.
Garland deserved hearing for high court [Editorial] (Tampa Bay Times [FL], 12/07/16)
"Granted, a president must nominate justices the Senate can reasonably be asked to confirm. He can't ask a Senate dominated by the other party to confirm someone whose judicial philosophy could appeal only to someone who shares the president's politics. He must, when facing such a Senate, choose someone toward the middle.
Obama did that. He did his job. The Senate did not do its job. Its refusal to confirm Judge Garland was not based on any flaw in the nominee's character, any deficit in his abilities or even any disagreement with his jurisprudence.
But this refusal of the U.S. Senate to do its duty cost a good man a fair hearing. More important, it also cost the nation a potentially fine justice — one more faithful to the law than one of the political parties or ideology."
Federal courts: Pawn in a political game (The Hill, 12/06/16)
Nancy K. Kaufman: On Oct. 29, 2015, the Senate Judiciary Committee sent Edward Stanton III’s nomination to the Senate Floor for a confirmation vote. Five months earlier, President Obama nominated Stanton to be a judge on the federal district court in Tennessee, after which the Committee held a hearing on Stanton’s nomination and determined that he was, in fact, qualified to be a judge: the current U.S. Attorney for the Western District of Tennessee, he is also a former in-house corporate counsel, private practitioner, and city attorney.
Despite these qualifications and the consent of a thorough and bi-partisan committee, Stanton’s nomination has been languishing on the Senate floor, with no vote scheduled, for over thirteen months. Why? There is no legitimate reason. Senate Majority Leader Mitch McConnell of Kentucky has blocked all judicial confirmation votes for over a year — including those for nominees without any opposition whatsoever —a shameful effort to politicize our entire federal judicial system.... In addition to holding a hearing on Judge Garland, Senate leadership must schedule immediate confirmation votes on the 25 nominees that have proven to be qualified; the hard work has been done, and every senator must be given the opportunity to vote yes or no.
Barksdale has waited long enough to be confirmed judge (Orlando Sentinel [FL] , 12/05/16)
Carl Tobias, My Word columnist: o April 28, President Barack Obama nominated Judge Patricia Barksdale, who has served as a magistrate judge since 2013 and as an assistant U.S. attorney from 2005 to 2013, for a vacancy on the Middle District of Florida. Barksdale is a well-qualified, mainstream nominee who enjoys the powerful support of Florida Sens. Bill Nelson, a Democrat, and Marco Rubio, a Republican.
Nonetheless, she has languished since then, mostly because GOP leaders refused to grant her a Senate Judiciary Committee hearing, a panel vote or a final debate and ballot. Because Barksdale is an experienced, moderate nominee and the Middle District of Florida needs all of its vacancies filled, the Senate must swiftly conduct the nominee's hearing and committee vote and her confirmation debate and ballot.
The Senate’s shame: Merrick Garland deserved a hearing for Supreme Court [Editorial] (Pittsburgh Post-Gazette [PA], 12/05/16)
By the Editorial Board: this refusal of the U.S. Senate to do its duty cost a good man a fair hearing. More important, it also cost the nation a potentially fine justice — one more faithful to the law than one of the political parties or a particular judicial ideology.
As a result of this abdication of responsibility, it will be harder to get justices like that in the future.
Indeed, the Senate has established a terrible precedent that makes it less likely that any president will be able to get a Senate controlled by the other party to confirm his Supreme Court nominees, however wise and well-qualified.
This was a study in Washington politics at its worst — political and constitutional malpractice — and it will have a lasting consequence.
U.S. Senate should quickly fill judicial vacancies in Northern District of Texas (Fort Worth Star-Telegram [TX], 12/05/16)
Carl Tobias: On March 5, President Barack Obama nominated Judge Scott Frost, James Wesley Hendrix and Judge Irma Carrillo Ramirez for judicial vacancies in the Northern District of Texas, which includes 100 counties from the Panhandle to Dallas and Fort Worth.... All three are highly qualified, mainstream nominees who enjoy the strong support of Texas Republican Sens. John Cornyn and Ted Cruz.
The Senate Judiciary Committee convened a Sept. 7 hearing for the nominees. Still, the nominations have languished since then, primarily because GOP leaders refused to grant them a panel vote or a final debate and ballot.
Because both judges and Hendrix are experienced, moderate nominees and the Northern District of Texas requires all of its vacancies filled, the panel must swiftly approve them and the Senate must accord them confirmation debates and votes.
The district presently has four openings in 12 active judgeships.
Letter: Senate should confirm Russell right away (Salt Lake Tribune [UT], 12/03/16)
Carl Tobias: The op-ed titled "Senate should confirm Russell so Utahns can get justice they deserve'' (Nov. 26) correctly states that Ronald Russell is a well-qualified, mainstream nominee for the District of Utah who has been waiting months for a Senate confirmation vote. Russell is an excellent consensus nominee who has the strong support of Utah GOP Senators Orrin Hatch and Mike Lee. Thus, those lawmakers must prevail on the leadership to provide Russell a floor debate and vote swiftly after the lame duck session resumes this week, and the Senate should confirm him before it adjourns.
Confirm Scott Palk for the Western District of Oklahoma (The Hill, 12/02/16)
Carl Tobias: On Dec. 16, 2015, President Barack Obama nominated Scott Palk, who served for nine years as an Assistant U.S. Attorney in the Western District of Oklahoma, for a vacancy on that district court. Palk is a very qualified, mainstream nominee, who enjoys the strong support of Oklahoma Republican Sens. Jim Inhofe and James Lankford. The Senate Judiciary Committee approved Palk on May 19 with no dissent. Nevertheless, he has languished on the floor since then, primarily because GOP leaders refused to grant him a final debate and vote. Because Palk is an experienced, moderate nominee and the Western District of Oklahoma requires all of its vacancies filled, the Senate must swiftly conduct his confirmation debate and vote.
The court currently has three vacancies in six active judgeships. ... Senators Inhofe and Lankford have asked for a quick floor vote, yet Mitch McConnell (R-Ky.), the majority leader, has failed to arrange it.... the Senate must hold his debate and ballot before it adjourns.
FEATURED EDITORIAL: Constitutional malpractice (Toledo Blade [OH], 12/02/16)
"Judge Merrick Garland is returning to his work on the Court of Appeals for the D.C. Circuit, his nomination for the Supreme Court killed without a vote by a Republican Senate majority more concerned with partisan politics than with doing its job.
The behavior of those who disposed of his nomination stands in sharp contrast to his own record and reputation as a nonideological judge.... The argument that the President was a lame duck, so therefore his Supreme Court nominee should not get a hearing, is both disingenuous and irresponsible. ... Granted, a president must nominate justices the Senate can reasonably be asked to confirm.... President Obama did that. He did his job. He picked the very judge Senator Hatch said would be a moderate choice. The Senate did not do its job. Its refusal to confirm Judge Garland was not based on any flaw in the nominee’s character, any deficit in his abilities, or even any disagreement with his jurisprudence. It was pure partisan politics"
Guest Column: Confirm new judges now (Albuquerque Journal [NM], 11/30/16)
By Carl Tobias / Los Angeles Times: With just a modicum of cooperation, Republican and Democratic senators could restore some of the judicial resources courts desperately need. There are, most notably, 20 well-qualified, mainstream district court nominees whom the Judiciary Committee approved by voice vote without dissent.
A majority of them were recommended for the bench by their Republican home-state senators. They should get a final confirmation vote during the lame-duck session that began last week.
Senate should confirm Connors (Honolulu Star Advertiser, 11/30/16)
Carl Tobias, Letter to the Editor: On Sept. 8, 2015, President Barack Obama nominated Clare Connors to the federal bench for the U.S. District Court in Hawaii.... The district has one vacancy in four judgeships ... The Senate Judiciary Committee ... on April 4 approved her nomination without dissent.... it is past time for the Senate to grant her a vote.
Letter: Federal vacancies are concerning (Record [NJ] , 11/29/16)
Ellen Barocas: Beyond the Supreme Court there are currently over 100 federal court vacancies with 59 pending nominees. Thirty-eight of the vacancies represent “judicial emergencies.” NJ alone has three vacancies, with Judge Julien Neals of Bergen County waiting more than 19 months for a hearing following his nomination. These vacancies result in NJ’s federal judges juggling caseloads nearly double what is manageable.
Sen. Cory Booker has lamented that “continued judicial vacancies means the American people must wait a year or two or longer to receive justice in a case," while reminding us that justice delayed is justice denied. In September, he called out Sen. Mitch McConnell for attempting to skip over long-standing nominees Julien Neals and Edward Stanton III.
Federal courts need help, as Idaho illustrates (Missoulian [MT], 11/28/16)
CARL TOBIAS Tribune News Service: With just a modicum of cooperation, Republican and Democratic senators could restore some of the judicial resources courts desperately need. There are, most notably, 20 well-qualified, mainstream district court nominees whom the Judiciary Committee approved by voice vote without dissent. A majority of them were recommended for the bench by their Republican home-state senators. They should get a final confirmation vote during the lame-duck session that began last week.... A clear example of the difficulties such obstruction creates is the Idaho District Court, where caseloads are now 20 percent higher than the national average. The court has one active judge and an 82-year-old second judge, who assumed senior status in July 2015. The nominee to fill this post has languished 11 months.
The Judiciary v. Working People: Here’s Why Courts Keep Striking Down Labor Protections (American Constitution Society Blog, 11/28/16)
Adam Shah, Jobs With Justice: There are 52 trial-level judgeships authorized for Texas’s four federal judicial districts. Eleven of those seats — nearly one-quarter — are vacant right now and the Senate is unlikely to fill any more of those vacancies. As a result, President Obama has only been able to appoint 12 judges to federal trial courts in Texas, far fewer than his predecessor, George W. Bush, who appointed 19 judges to those courts and left office with only one vacancy. As a result, the Texas federal courts have been supportive of large corporations’ attempts to strike down protections for working people .... Even when Senate Republicans have allowed President Obama to appoint judges in Texas, they are not often progressive and worker-friendly. The one who struck down the overtime rule, Judge Amos L. Mazzant III, was appointed by President Obama in consultation with Texas’s two Republican senators, John Cornyn and Ted Cruz, both of whom needed to approve the nomination, under traditional Senate procedures. It’s not difficult to see why Senators Cornyn and Cruz approved Judge Mazzant’s nomination. Before becoming a federal judge, conservative Texas Governor Rick Perry appointed Judge Mazzant to a Texas state appellate court. Before that, Judge Mazzant ran as a Republican for a judicial seat and also has made political donations exclusively to Republicans.
Senate Republicans have effectively stacked judicial nominees so that the appellate courts also are tilted against working people. The U.S. Court of Appeals for the Fifth Circuit, which hears appeals from Texas federal trial courts, as well as two other states, currently has 10 Republican appointees and only five Democratic appointees. Two of the seats are vacant, but President Obama has been unable to come to an agreement with Texas’ two Republican Senators on nominees who could fill those seats, and therefore, the appellate court’s lopsided partisan breakdown has remained throughout the entire Obama administration.
Where's the urgency to fill court vacancies? | Letter (Sun Sentinel [FL], 11/27/16)
Carl Tobias: On April 28, 2016, President Barack Obama nominated Patricia Barksdale and William Jung for Middle District of Florida vacancies, and Philip Lammens for a Northern District opening. Each is a highly qualified, mainstream nominee, who has the strong support of Florida Senators Bill Nelson (D) and Marco Rubio (R).
Nevertheless, they have languished since April, primarily because GOP leaders did not accord the nominees Judiciary Committee hearings, panel votes or final debates and ballots. Because all three are experienced, consensus nominees and the districts need every vacancy filled, the Senate must expeditiously provide the nominees hearings and committee votes and confirmation debates and ballots.
As attorney general, Sessions will undo rights [Editorial] (San Antonio Express-News [TX] , 11/27/16)
Express-News Editorial Board: In 1986, Sessions, a federal prosecutor at the time, made history. A GOP-controlled Senate rejected him for a federal judgeship because it believed allegations that he was a racist were credible.... the Senate need not approve a nominee with a record of offending cherished American norms of inclusion and tolerance — even if the president doesn’t have a problem with that behavior. ... In 1986, a GOP-controlled Senate properly concluded that it could not take the chance with a federal judgeship for Sessions, a lifetime position with as much power to erode rights as bolster them.... Sen. Sessions has demonstrated a hostility for immigration, the Voting Rights Act and crime reform to unskew systemic harshness for Americans of color. In advice and consent, the president has no right of consent if a nominee is unacceptable. Sessions is. We will be looking for Texas Sens. John Cornyn and Ted Cruz to reject this nomination, as should the entire Senate.
Federal courts need to be filled now (Rome News-Tribune [GA], 11/27/16)
CARL TOBIAS, GUEST COLUMNIST: With just a modicum of cooperation, Republican and Democratic senators could restore some of the judicial resources courts desperately need. There are, most notably, 20 well-qualified, mainstream district court nominees whom the Judiciary Committee approved by voice vote without dissent. A majority of them were recommended for the bench by their Republican home-state senators. They should get a final confirmation vote during the lame-duck session that began earlier this month.
Carl Tobias: Confirm McElroy as federal judge (Providence Journal [RI] , 11/27/16)
"On Sept. 8, 2015, President Barack Obama nominated Mary McElroy, who has served as the public defender in the Rhode Island Public Defender’s Office since 2012, for a judicial vacancy on the District of Rhode Island. McElroy is a well qualified, mainstream nominee who enjoys the powerful support of Rhode Island Democratic Senators Jack Reed and Sheldon Whitehouse.
The Senate Judiciary Committee approved McElroy on Jan. 28 without dissent. However, the nominee has languished on the floor ever since, principally due to GOP leaders’ refusal to allow her confirmation debate and vote. ...senators must conduct McElroy’s debate and vote when they return for the lame duck session Monday."
Commentary: Fill federal courts now (Bend Bulletin [OR], 11/27/16)
By Carl Tobias / For the Los Angeles Times: With just a modicum of cooperation, Republican and Democratic senators could restore some of the judicial resources courts desperately need. There are 20 well-qualified, mainstream district court nominees whom the Judiciary Committee approved by voice vote without dissent. A majority of them were recommended for the bench by their Republican home-state senators. They should get a final confirmation vote during the current lame-duck session.
Confirm Walter Counts to federal district court bench (San Antonio Express-News [TX] , 11/27/16)
Carl Tobias: On March 15, President Barack Obama nominated Walter Counts, who has served as a U.S. magistrate judge in the Western District of Texas since 2009, for a vacancy on that district court.
Judge Counts is a well-qualified, mainstream nominee, who enjoys the powerful support of Texas Republican Sens. John Cornyn and Ted Cruz. The Senate Judiciary Committee conducted a hearing for Counts on Sept. 7.
Nonetheless, he has languished since then, primarily because GOP leaders refused to grant him a panel vote and a final debate and ballot.... Many senators have requested prompt floor votes for 20 district court nominees with panel approval, yet Senate Majority Leader Mitch McConnell has not set those ballots.... It is past time for senators to vote on Walter Counts.