Editorials and Opinion
GOP Senate Moving Obama's Judges Slower than Democrats Moved Bush's (People For blog, 03/05/15)
"Two months into the new 114th Congress, it's a good time to take stock of how the Republican-controlled Senate is doing when it comes to processing circuit and district court judicial nominations. So far, the Judiciary Committee has held only one hearing to consider such nominations ... current vacancies has climbed from 39 at the beginning of the year to 47 today, and the number of judicial emergencies has jumped from 12 to 21.... Considering that there are seven circuit and district court nominees who were nominated back in November, they should all have hearings as soon as possible."
Hey, Mitch McConnell, Get to Work (Bloomberg News, 03/04/15)
Jonathan Bernstein column: "Two months into the new Congress, the Senate has confirmed only two executive-branch nominees .... And no judges at all. This inaction doesn’t get headline coverage, but it should. As judicial vacancies increase, people have to wait for trials .... Through March 4, 2007, Democrats had already confirmed 18 of George W. Bush's nominees: eight judges, including a circuit court judge, and 10 executive-branch officials. ... simply refusing to allow most positions to be filled is an abuse of power, and McConnell needs to be called on it."
More Delay on the Restrepo Nomination (People For blog, 03/04/15)
"Qualified jurists nominated for federal judgeships way back in November are still waiting to have a committee hearing scheduled. They include Kara Farnandez Stoll, who would be the first woman of color on the Federal Circuit, and L. Felipe Restrepo of Pennsylvania, who would be the first judge on the Third Circuit with experience as a public defender. The Third Circuit vacancy has been designated a judicial emergency, and with another vacancy on that court opening on July 1, it is even more important not to keep delaying Restrepo's already overdue hearing.
Yet a Grassley spokeswoman told The Legal Intelligencer ... that she "couldn't even estimate" a timeframe for Restrepo's hearing.... when the Democratic Judiciary Committee considered Michael Mukasey's nomination to be attorney general.... the committee was able to hold confirmation hearings on six judicial nominees and advance two to the full Senate. It was also able to advance an additional four judicial nominees the week after voting on Mukasey."
Judicial Selection in Congress’ Lame Duck Session (Indiana Law Journal , 02/20/15)
Carl Tobias: This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.
Republican Inaction as Judicial Emergencies Jump (People For blog, 02/20/15)
"Texas now has seven judicial emergencies, more than a third of the national total. Two of them have nominees who should have advanced to the Senate floor last week, but were delayed when Republicans decided to delay the scheduled committee vote on four fully vetted district court nominees by two weeks simply because they could.
Another of the newly designated emergencies is in the Third Circuit. The good news is that district court judge L. Felipe Restrepo was nominated to fill this seat way back in November, and that he has the enthusiastic support of his home state senators, Democrat Bob Casey and Republican Pat Toomey. The bad news is that Chairman Grassley continues not to schedule a hearing for this highly qualified nominee (or any other)."
The most misleading statements in the judge’s ruling against Obama’s immigration plan (Washington Post, 02/19/15)
Wonkblog by Max Ehrenfreund: "A decision from the federal district court in Brownsville, Texas, has thrown the U.S. immigration system into chaos. As the Obama administration prepares an appeal in order to carry out its plan to grant a legal status to some four million undocumented immigrants, a close look at the opinion by Judge Andrew S. Hanen reveals some ... misleading or ill-informed passages."
The Obama Years (New York Times, 02/19/15)
Charles M. Blow Op-Ed column: "One could argue that the Supreme Court — the judicial Divine Nine — has shaped the Obama presidency as much as Obama has. That’s not to say that he hasn’t done an amazing job of shaping the judiciary in this country himself. In addition to appointing two new members to the Supreme Court — both women, a first for any president — he has completely transformed the lower courts.... Toobin laid out the diversity of the Obama transformation .... This is huge."
EDITORIAL: U.S. district judge makes wrong decision on immigration order (San Francisco Chronicle [CA], 02/19/15)
"In a surprising decision on Monday, a U.S. district judge in Texas, Andrew S. Hanen, ruled that President Obama’s executive actions on immigration can’t move forward. Hanen is a George W. Bush appointee who’s been critical of Obama’s immigration policies in the past. "
Opinion: The judge immigration foes wanted; A flimsy immigration ruling (Washington Post, 02/18/15)
Ruth Marcus, Columnist: "[T]he opinion is worth noting for three reasons: first, what it says about the depressing politicization of the federal judiciary; second, and related, what it suggests about the conservative face of judicial activism; third, what its implications may be for the coming showdown on funding for the Department of Homeland Security. The New York Times report on the ruling contained a jarring phrase, describing its author, U.S. District Judge Andrew Hanen, as “an outspoken critic of the administration on immigration policy.” My instinct was that the reporter had gone too far in that characterization; surely, a federal judge — even a federal judge appointed by George W. Bush — could not fairly be described that way. Turns out, he can."
EDITORIAL: Push ahead on immigration after judicial setback in Texas (Boston Globe, 02/18/15)
"At the eleventh hour, a federal judge in Texas earlier this week put up a roadblock that will temporarily prevent undocumented immigrants from applying for legal and deportation relief. Judge Andrew Hanen’s preliminary injunction, which puts President Obama’s immigration orders on hold, amounts to nitpicking over some procedural technicalities. ... Hanen’s contention that the policy imposes an undue burden on the states is a one-sided political argument, not any kind of proven fact. On the contrary, any costs of the deferred-deportation programs would likely be offset by their economic benefit, .... The 5th Court of Appeals should expedite the matter and issue a stay so that the programs can be launched."
Op-Ed Texas judge's immigration ruling is full of legal holes (Los Angeles Times, 02/18/15)
Erwin Chemerinsky & Samuel Kleiner: "U.S. District Judge Andrew S. Hanen's decision to block the Obama plan to defer deportation for about 5 million immigrants here illegally ignores a basic principle of government: For better or worse, the executive branch of government always has discretion as to whether and how to enforce the law. The judge's lengthy opinion is wrong as a matter of law and, worse, is based on xenophobia and stereotypes about immigrants. It is very likely to be overturned by the U.S. 5th Circuit Court of Appeals and, if necessary, the Supreme Court.... Judge Hanen, appointed to the federal bench by George W. Bush, has the reputation of being especially conservative on immigration issues. That tone underlies his opinion, especially as he spoke of immigrants being “terrorists” and “criminals.”"
EDITORIAL: A Judge’s Assault on Immigration (New York Times, 02/18/15)
"Judge Hanen — who last month invoked a biblical flood in describing illegal immigration into that community — has spoken out aggressively against Mr. Obama’s immigration policy in the past, saying it “endangers America” and is “an open invitation to the most dangerous criminals in society.” Indeed, his earlier opinions were the reason Republican governors and attorneys general pushed to get their suit into his district.... He danced around the fundamental point — as the Supreme Court reiterated as recently as 2012 — that setting immigration policy is the prerogative of the federal government, not the states."
Judge misread Obama’s immigration program (Miami Herald, 02/18/15)
Cass Sunstein: "Judge Andrew S. Hanen said, the Department of Homeland Security acted unlawfully because it did not allow the public to comment in advance. With this conclusion, Hanen almost certainly overreached. ... Judge Hanen was right to focus on the APA and the technical requirements of the law. But he got the technical argument wrong."
Editorial: Another step backward on immigration (Tampa Bay Times [FL], 02/18/15)
"President Barack Obama is right on the policy and probably right on the law but wrong on the politics. An activist federal judge in Texas ruled late Monday that Obama is wrong on the law and put the president's latest executive orders on immigration on hold.... Applications from those who came to the United States as children to remain here legally were to start being processed by the federal government today. Now those applicants, who live in our neighborhoods and work in our fields and businesses, are unfairly stuck in limbo.... Hanen is not exactly a neutral observer; the federal judge has been a critic of the Obama administration's approach to immigration in earlier rulings. ... a broad array of legal scholars and previous court opinions have found that the president has wide discretion to set immigration policy, even if Obama pushed the envelope in this case."
EDITORIAL: Setback for immigrants sets back the nation (News & Observer [NC], 02/18/15)
" A last-minute decision by a federal judge in Texas has caused bitter disappointment for hundreds of thousands of undocumented immigrants who expected they would be able to apply for work permits and protection from deportation under a presidential executive action. Judge Andrew S. Hanen of Federal District Court for the Southern District of Texas issued an injunction Monday halting the executive action.... The development was an immediate setback for young undocumented immigrants, but it should discourage all who believe in the impartiality of courts and the decency of the American character. The injunction may well be dissolved on appeal, and in the long run the Obama administration is confident that the president has acted on solid legal ground. In the meantime, we have the spectacle of a judge who has been an outspoken critic of U.S. immigration policy straining to thwart the protections with the barest of legal support. the report said, it would lead to a $197 million increase in tax revenue over five years. Despite such reports, Hanen, an appointee of President George W. Bush, found that one of the states suing, Texas, would be harmed because it would have to meet the cost of issuing driver’s licenses to some undocumented immigrants. ... This sort of transparent politicking from the bench is increasingly common as conservatives ask the courts for what they cannot attain through legislation."
Editorial Immigration debate slowed by another partisan sideshow (Los Angeles Times, 02/18/15)
"A federal judge on Monday halted portions of President Obama's executive actions shielding more than 4 million immigrants in the country illegally from deportation. The administration has pledged to appeal. When it does, the courts should act with all due speed to reinstate the president's policies.
The judge's injunction adds yet another sideshow .... Hanen's argument is unconvincing. He criticized Obama's immigration enforcement policies in a previous, unrelated case, and he made it clear in this case that he is receptive to the claim that the government failed to follow proper regulatory procedures. The Obama administration counters persuasively — to us, if not to Hanen — that it acted properly and within its legal authority.
Ultimately, this is a partisan lawsuit and a partisan injunction, neither of which should stand."
EDITORIAL: Thanks to an activist judge, Republicans have it both ways on immigration reform; Right hails blocking of reform plan (Sacramento Bee [CA] , 02/18/15)
"Political conservatives make a lot of hay about “activist” judges when it comes to rulings that counter their political beliefs, such as giving gay people the right to marry or maintaining the healthy separation of church and state. But they don’t seem to mind when that activism skews in their favor. That’s what happened on Monday when U.S. District Court Judge Andrew S. Hanen issued a temporary restraining order halting President Barack Obama’s executive action to defer deportations of millions of undocumented immigrants whose children are U.S. citizens or lawful residents, if they qualify and pay back taxes.... In fact, Hanen, of Brownsville, Texas, is the exemplar of an activist judge. Even before taking on this case, he has been outspoken about immigration and highly critical of Obama’s deportation policy. In his 123-page explanation of why he was granting a temporary injunction, he contorts logic to validate the spurious claims made by the 26 states, including Texas, suing to stop the president’s use of executive order on immigration. Hanen found the flimsiest of technicalities on which to hang this stay ... a minimal cost that would be offset by taxes those qualifying for the deferred action program would be required to pay."
EDITORIAL: Speaker Boehner lands in a familiar spot (Akron Beacon Journal [OH], 02/18/15)
"The president acted carefully, using the discretion available to his office, deferring deportation for those who meet certain qualifications. On Monday, a federal judge in Texas put the president’s executive action on hold. Yet the ruling departs dramatically from the law and precedent."
Editorial: Stalled order; Republicans continue to play politics with a difficult issue by finding their ideal judge. (Houston Chronicle, 02/18/15)
"Texas Gov. Greg Abbott and his Republican counterparts in 25 other states went venue-shopping not long ago, and on Monday night they got what they wanted when a federal judge based in Brownsville ruled against President Barack Obama's order shielding up to 5 million undocumented immigrants from deportation.... The ruling by Judge Andrew S. Hanen of Federal District Court for the Southern District of Texas, was no surprise. The George W. Bush appointee has issued several rulings in recent years that reflect his hard-line immigration views (thus the venue-shopping).... There's a good chance the Fifth Circuit will overturn Hanen's ruling."
EDITORIAL: The Post's View: Immigration policy, in limbo; Frustration with possible presidential overreach cannot justify judicial overreach (Washington Post, 02/18/15)
"TO THINK, as we do, that President Obama overstepped his authority by shielding more than 4 million illegal immigrants from deportation, with no assent from Congress, does not mean that a federal judge should have license to invalidate the president’s order on the basis of tendentious logic.
Yet that’s the effect of a ruling Monday by U.S. District Judge Andrew S. Hanen in Brownsville, Tex., whose well documented distaste for the Obama administration’s immigration policies explains why similarly predisposed Republican-led states turned to him for relief....Judge Hanen agreed with the states that their lawsuit cleared minimum procedural requirements and could go forward. He had to stretch so far to reach even that modest conclusion that we hope an appeals court will lift his stay while the case proceeds."
Waiting for 2015's First Confirmation (Bloomberg News, 02/05/15)
Jonathan Bernstein: "It’s about time someone gets confirmed. So far we have a goose egg ... Compare now with 2007, after Democrats won a new Senate majority during the seventh year of George W. Bush’s presidency.
By Feb. 5, 2007, the Senate had already confirmed five of Bush’s federal district court nominees. By the end of the month, it had approved two more district court selections and one appeals-court nominee. ... it’s important for the government to function smoothly, and that means filling vacancies."
Senate Democrats should be careful about their filibuster strategy (Washington Post, 02/04/15)
James Downie: "when President Obama took office, Republicans took obstruction to a new level, blocking even widely popular bills and judicial appointments. Then-Majority Leader Harry Reid (D-Nev.) was right to get rid of the filibusters for most federal nominees, allowing Democrats to finally fill long-vacant judgeships"
Jonathan Bernstein: Lift the blockade on confirming US judges (McClatchy newspapers, 01/29/15)
"Democrats weren't objecting to ideology-based filibusters against specific nominees, but to the across-the-board blockades preventing the president from filling any judicial vacancy at all. The filibuster that pushed Democrats over the edge was over three seats on the District of Columbia Circuit Appeals Court."
Editorial: Time for Senate to end the theatrics and do its job on nominations (Los Angeles Times, 01/28/15)
"These nominations — and others that will follow — will be a test of Senate Majority Leader Mitch McConnell’s promise to restore what he calls “regular order” to the proceedings of that body.... Even after Democrats abolished the filibuster for most presidential appointments in late 2013, Republicans used other parliamentary stratagems to delay votes even on uncontroversial nominees to federal courts and ambassadorships....when the hearings are finished, the Senate should move expeditiously to an up-or-down vote focused solely on the nominees’ qualifications.
That should be the rule not only for Cabinet nominations but for those to the federal bench, to ambassadorships and to regulatory agencies. The dysfunction of the confirmation process in recent years has been a national scandal."
Rand Paul's Brand of Judicial Activism (Bloomberg News, 01/26/15)
Cass R. Sunstein: "For many decades, the Supreme Court’s 1905 decision in Lochner v. New York has ranked among the most universally despised rulings in the history of American law....Within the federal courts, Paul’s position is closely aligned with that of Judge Janice Rogers Brown of the powerful U.S. Court of Appeals for the District of Columbia Circuit. Brown has contended that the New Deal “inoculated the federal Constitution with a kind of underground collectivist mentality,” which transformed the Constitution into “a significantly different document.” In a recent opinion, she complained that without an active judiciary, “property is at the mercy of pillagers.” Judge Brown has no enthusiasm for judicial restraint. Along with like-minded colleagues, she has played a leading role in a series of aggressive lower-court decisions, striking down restrictions on commercial advertising, invalidating financial regulations and otherwise protecting economic liberty.
There’s good reason to resist this trend, which would empower federal judges to exercise far too much authority over the American people."
PD Editorial: No more red herrings in water talks (Press Democrat [CA] , 01/25/15)
"Fortunately, the U.S. Supreme Court didn’t bite on the smelt vs. farmers argument. Last week, the justices rejected an appeal from the Westlands and Metropolitan water districts, among others, seeking to overturn limits on pumping water from the Delta into canals serving Central Valley growers and Southern California cities. Those limits were put in place to protect the smelt as well as several species of salmon .... The pumping limits withstood scrutiny from the National Academy of Sciences and the federal courts, but .... House members from the Central Valley are again sponsoring legislation to waive the Endangered Species Act as it relates to the delta smelt. But the problem isn’t a tiny endangered fish. It’s a lack of water"
Fill judicial vacancies, including the one in Tennessee (Tennessean, 01/21/15)
Opinion by Tommy Tobin: "With more than 40 vacant seats on the federal bench, our judicial branch is under substantial strain.... One of those vacant seats is in Chattanooga, ... Travis Randall McDonough, Mayor Andy Burke’s chief of staff and counselor, has been nominated for the post.... Tennessee Senators Bob Corker and Lamar Alexander, a former mayor of Chattanooga and an attorney, respectively, should recognize the contribution that McDonough could make to the bench in East Tennessee.
Even with our divided government, let’s push our politicians to govern responsibly and consider judicial nominees on their merits."
Citizens deserve to have judicial vacancies filled (Pittsburgh Post-Gazette [PA], 01/15/15)
JOHN NEUROHR letter: "On Jan. 8, the Post-Gazette editorial board wrote, “The legislators, who are paid by the public, need to do their jobs. For senators, an important part of that is to act on presidential nominations” (“Congress Returns”)....Locally, there are three long-standing Western District of Pennsylvania vacancies for which Sens. Bob Casey and Pat Toomey should recommend nominees right away. But good nominees with bipartisan support are already waiting for confirmation. One example is U.S. District Judge Luis Felipe Restrepo, who has been nominated and now renominated by President Barack Obama to join the 3rd U.S. Circuit Court of Appeals. Sen. Toomey made public his support for Judge Restrepo, saying he would be a “superb” federal judge. Sen. Casey also called Judge Restrepo an “excellent choice.” Not only is Judge Restrepo qualified, but also he brings much-needed diversity to the bench."
Grassley gets fine start on judiciary (Des Moines Register [IA], 01/11/15)
Prof. Carl Tobias: "The Register's rose to U.S. Sen. Chuck Grassley (Jan. 4 Roses & Thistles) is correct. The new Senate Judiciary Committee chair deserves much credit for expressing his willingness to work cooperatively with Democrats and President Barack Obama on filling the many federal judicial vacancies. The vast majority of Obama nominees have easily satisfied Senator Grassley's criteria, such as competence and moderation, for appointment to the bench. Grassley's Jan. 7 issuance of a checklist of committee priorities, which includes prompt hearings for judicial nominees who did not receive them last year, is also heartening."
EDITORIAL: Emissions reporting: Drillers have the same duty as other industries (Pittsburgh Post-Gazette [PA], 01/09/15)
"A coalition of nine environmental groups filed suit Wednesday to force the Environmental Protection Agency to add gas and oil extractors to the list of industries that must report emissions to the federal Toxic Release Inventory....In 1997, the EPA unwisely decided to exempt the industry from the emissions reporting requirement. Now, after trying for two and a half years to get the agency to change its mind, the environmental groups filed suit in U.S. District Court in Washington, D.C., to force a change....If the EPA won’t impose the reporting requirement on gas and oil extractors, the court should."