Editorials and Opinion
Vacancies create emergency in federal courts, by Sun Sentinel Editorial Board (Sun Sentinel [FL], 08/23/16)
"An emergency exists in Florida's federal court system and the group responsible for fixing the problem — the U.S. Senate — just yawns and shrugs its collective shoulders. .... And it's not just Florida that is suffering. More than 10 percent of the nation's 677 federal district judgeships are vacant, awaiting approval by the Senate. In Florida, five of 37 district judge slots, 14 percent, are unfilled. ... With a smaller number of judges taking on the growing responsibility, workloads increase, delays lengthen and costs rise.... "It's like an emergency room in a hospital," said Southern District Chief Judge Federico Moreno. " ... Eventually you burn out."... justice delayed is justice denied. It's now so bad in Florida that four of the vacancies have been declared "judicial emergencies." ... in states that have both a Republican and Democratic senator, it is easy for one of them to stop such a vote, which in Florida is what Republican Sen. Marco Rubio did on Southern District nominee Mary Barzee Flores"
The (Supreme) Courts of Texas: Judge’s Power Grab (Justice Watch, 08/22/16)
"Of course, these developments should come as no surprise if you step back and look at the disastrous state of the federal judiciary in Texas. Thanks to Republican obstruction led by Texas Senators Ted Cruz and John Cornyn, Texas has the most federal judicial vacancies of any state in the country. Moreover, all twelve of Texas’s current vacancies (including two on the Fifth Circuit) have been declared judicial emergencies by the Administrative Office of the United States Courts. That means Texas is home to more than a third of the 32 judicial emergencies nationwide.
Cruz and Cornyn have systematically delayed and obstructed filling federal vacancies in Texas for years. Two Texas seats on the Fifth Circuit have sat vacant for a combined total of 2,447 days—more than six and a half years. The Southern District of Texas, where Judge Hanen sits, has two vacancies, while the Northern District of Texas, where Judge O’Connor sits, has four vacancies. In fact, the Northern District of Texas has no Obama appointees whatsoever, with Republican appointees outnumbering Democratic appointees by three to one."
Letter: Sweet also deserves a vote on nomination (Buffalo News [NY], 08/22/16)
Frank Housh, Esq.: "Merrick Garland has now been waiting longer than any other Supreme Court nominee. Garland deserves to be considered by the Senate, and so do the American people who need a functioning judiciary.
But Garland is not the only nominee waiting for the Senate to do its job. Buffalo attorney Kathleen Sweet, nominated by President Obama in March to fill the U.S. District Court vacancy in the Western District of New York, has been waiting since March 8. While the Supreme Court vacancy is devastating, the majority of cases never make it to the highest court; they are heard by the nearly 900 lower Federal Court judges nationwide. Ten percent of these seats sit vacant, however, because the Senate majority places ideology above the public good.... I urge the Judiciary Committee to report her nomination out of committee so Sweet can receive full consideration by the Senate as soon as possible. She – like all pending nominees – deserves a vote on the merits.
When it comes to confirming judges, the Senate needs to do its job."
End logjam of gridlock, fill federal court slots: Where We Stand [Editorial] (Orlando Sentinel [FL] , 08/21/16)
"An emergency exists in Florida's federal court system and the group responsible for fixing the problem — the U.S. Senate — just yawns and shrugs its collective shoulders. .... And it's not just Florida that is suffering. More than 10 percent of the nation's 677 federal district judgeships are vacant, awaiting approval by the Senate. In Florida, five of 37 district judge slots, 14 percent, are unfilled. ... With a smaller number of judges taking on the growing responsibility, workloads increase, delays lengthen and costs rise.... "It's like an emergency room in a hospital," said Southern District Chief Judge Federico Moreno. " ... Eventually you burn out."... justice delayed is justice denied.
It's now so bad in Florida that four of the vacancies have been declared "judicial emergencies." ... in states that have both a Republican and Democratic senator, it is easy for one of them to stop such a vote, which in Florida is what Republican Sen. Marco Rubio did on Southern District nominee Mary Barzee Flores"
Our view: Republican Senate should confirm Erie judge [EDITORIAL] (Erie Times-News [PA], 08/19/16)
"It has been three years now that citizens of seven northwestern Pennsylvania counties have gone without their own federal district judge .... But even though Toomey has called for a confirmation vote — at least on Baxter and Judge Marilyn Jean Horan, a Butler County Republican nominated for a federal judgeship in Pittsburgh — the Republican-controlled Senate has refused.... Senate Majority Leader Mitch McConnell invokes math as a flimsy rationale when it comes to nominations like Baxter's. Obama has had more federal judges confirmed than President George W. Bush did — a comparison that means little when Obama has faced more vacancies.... When the Senate goes back to work in the fall, it should act quickly to seat Baxter and the other Pennsylvania nominee, for no other reason than a fully functioning judiciary is key to a functioning democracy."
Another Voice: Taking the judicial system for granted is folly (Buffalo News [NY], 08/14/16)
Vanessa Glushefski: "at the top of my list is the Supreme Court vacancy, as well as the hundred or so other federal district court vacancies plaguing our nation.
The United States Senate has a job to do. Actually, it has two. The Constitution requires that the Senate give its advice and consent as to federal judicial nominations. By failing to do either, the Senate, in essence, is infringing on the president’s Article II power to nominate candidates and, more importantly, the Judiciary’s Article III power to adjudicate cases and controversies.
Frankly, that is unacceptable. ... Without an adequately staffed judiciary, the balance contemplated in our Constitution comes under attack"
Did Obama win the judicial wars? (Politico, 08/08/16)
Michael Grunwald: "Sheldon Goldman, an academic who crunched historical data to create an Index of Obstruction and Delay, found that the index reached record highs under Obama even before the GOP took control of the Senate in 2015 and slowed the flow of confirmations to a trickle. While Obama has gotten two more judges confirmed than Bush did in his eight years—Clinton and Ronald Reagan both got about 50 more—judicial vacancies have more than doubled in the Obama era after getting cut in half during the Bush era. There are now 29 understaffed courts designated “judicial emergencies,” up from 12 when Obama took office. And those numbers don’t reflect how Senate Republicans turned even uncontroversial lower-court nominations into legislative ordeals, converting the filibuster, previously extremely rare, into a routine tool of delay, often for judges who were eventually confirmed unanimously."
GOP’s Refusal To Confirm Judges Has Crippled Our Federal Courts (Blue Nation Review, 08/05/16)
Susan Madrak: "As part of their unprecedented obstructionism, Senate Republicans are not only blocking Merrick Garland from the Supreme Court, but they’re refusing to confirm what used to be routine nominations for federal district judges."
Senate Republicans' inaction puts judiciary in crisis (Tennessean, 08/05/16)
Daniel Horwitz Op-Ed: "due to unprecedented inaction from the United States Senate, large swaths of the federal judiciary are simply missing — resulting in excessive delays, exploding dockets and inconsistent application of the law in different parts of the country.
At present, more than 10 percent of the federal judiciary is vacant,... nearly one-third of federal District Court vacancies are currently designated “judicial emergencies” ... With respect to Court of Appeals nominees, the confirmation process has become so dysfunctional that Senate Republicans are now routinely refusing to confirm qualified nominees whom they themselves proposed to fill vacant positions. ... Having been left without a critical ninth member since February, the Supreme Court has already been unable to resolve myriad split decisions by lower courts — resulting in the same laws carrying different meanings in different parts of the country."
These Republican Senators Want Their Judicial Nominees Confirmed. Majority Leader McConnell Isn’t Listening. (Medium, 08/04/16)
Leadership Conference on Civil and Human Rights: "When the U.S. Senate left for a seven-week summer recess last month, Senate Majority Leader Mitch McConnell, R. Ky., continued to ignore repeated pleas from Republican and Democratic Senators to hold votes on 20 district and circuit court nominees pending on the Senate floor. The Senate Judiciary Committee approved all but one of these nominees on unopposed voice votes (and the other was approved on a bipartisan 13–7 vote).
Republican Senators with pending nominees aren’t happy. In fact, all 16 Republican senators who have a nominee (or nominees) pending on the Senate floor have spoken favorably about them and want to see a confirmation vote, as have other Republican senators with nominees who are still in committee. These senators need to keep talking about and urging — and demanding — that McConnell schedules votes after recess. Unless McConnell hears from them and obliges, Americans seeking justice will continue to face an overworked and understaffed federal judiciary made worse by this Senate majority’s inaction.
Here’s a sampling of what Republican senators with nominees on the floor have said, listed in order of nomination — beginning with a Tennessee nominee who’s been waiting since May 2015: ... When senators return from their recess next month, they could swiftly take up all 20 nominees pending on the floor — if McConnell will allow it. And he should, because the matter is urgent: Five of these nominees would fill judicial emergencies — a designation by the Administrative Office of the U.S. Courts — and in total, since Republicans took control of the Senate in January 2015, judicial emergencies have skyrocketed from 12 to 30.
Of course, one nomination still pending in the Senate Judiciary Committee is Merrick Garland’s to the U.S. Supreme Court."
Burr holds back judicial nominees (Fayetteville Observer [NC] , 08/03/16)
Mark Sternlicht, Letter to the Editor: "On July 20, Judge Merrick Garland became the longest stalled Supreme Court nominee ever. Judge Garland is widely respected, but Richard Burr and his fellow Senate Republicans have obstructed his nomination for more than 125 days.
Back when George W. Bush was president, Sen. Burr insisted that judicial nominees "regardless of party, receive an up-or-down vote." Adding to the hypocrisy, Sen. Burr has led obstruction in filling the vacancy for federal judge for the Eastern District of North Carolina, which includes Fayetteville. This seat has been vacant for more than 10 years, longer than any other in the nation, and has been classified as a judicial emergency. All Sen. Burr has to do is turn in his "blue slip," a sheet of paper, to let the nomination proceed. Instead, he is blocking widely respected Fayetteville native and former state Supreme Court Justice Patricia Timmons-Goodson from the position.
Judicial emergencies have a big real-world impact for everyday Americans, who must wait and wait, often years, for their day in court. This includes small business owners hoping to settle contract disputes, workers who've faced discrimination and people injured by the negligence of a federal government employee.
Justice delayed is justice denied."
The GOP vs. The Constitution (Greene County Record [VA], 08/03/16)
Patrick Moctezuma, Letter to the Editor: "The real damage has been done by a coordinated attack on our judiciary. By blocking qualified nominees for purely political reasons, who enjoyed bipartisan support, Mitch McConnell and the Senate GOP have prevented this president from filling empty bench seats in federal courts all across the country. Obama has been held to the lowest confirmation rate in modern history, precipitating a judicial crisis in our country, as judges work too long and burn out from excessive caseloads, and cases go many months without being heard, itself a violation of our Constitutional Rights. ... Republican Mitch McConnell has decided on his own that the Senate's "advise and consent" concerning individual judicial nominees, should - in this case and no other, apparently - equate to "obstruct and prevent" the sitting president from exercising one of the most basic and important executive authorities and duties: representing the American people in selecting Supreme Court justices."
Now do you understand why the courts are so important? (NC Policy Watch, 08/02/16)
Rob Schofield: "Fourth Circuit decision on voting rights should convince progressives, once and for all, of the need to fight for good judges ... Indeed, in this era of divided government, it’s the federal courts that are, increasingly, casting the deciding vote on all manner of critically important matters.... it’s in large measure in response to the far right’s determined and persistent activism that the U.S. Senate has blocked so many of President Obama’s appointments – including most notoriously and for the longest period in U.S. history – Supreme Court nominee Merrick Garland.
And still, several good judges have been able to run the gauntlet and win confirmation in the Senate – often by unanimous or near unanimous votes after the months or years of inexcusable and unexplained delays. Judge James Wynn, one of the three judges on the panel that decided the voter I.D. case last week, is a classic example. He was first nominated to serve on the Fourth Circuit in 1999 by President Clinton. It took 11 years, however, before he was finally confirmed (unanimously) after being re-nominated by President Obama.
The bottom line: After seven years in office, President Obama clearly has made a difference in restoring some balance to the federal judiciary. The lawyers he has nominated have been the most diverse – in terms of gender, ethnicity, occupation and background – in history. As the Fourth Circuit decision demonstrates, this is having an important real world impact.
That said; there is still a long, long way to go before the federal courts (much less the state courts) come close to truly reflecting the American melting pot that they are supposed to serve."
Senate Slow to Confirm Judges, Creating "Judicial Emergencies" (Bloomberg News, 08/02/16)
Bloomberg podcast: The Senate has been very slow in confirming any of President Barack Obama’s nominees to the federal bench. At this rate, by the end of the 114th Congress, only 30 will be confirmed. Bloomberg BNA Senior Congressional Reporter Nancy Ognanovich talked about the impact with Bloomberg’s Amy Morris
August 2016: Judicial Vacancies Move Toward Historic Levels (Federal Bar Association's Washington Watch, 08/01/16)
Bruce Moyer: "As of late June, there were 89 federal judicial vacancies. Sixty-seven of them existed at the district court level, or 10 percent of the nation’s 673 district court judgeships. That number stands at nearly twice the number of vacancies that existed at the same point in the presidency of George W. Bush and 50 percent more than existed under Bill Clinton or George H.W. Bush. Vacancies constituting “judicial emergencies”—where caseloads are particularly heavy or have existed for an extended period—are roughly double what they were at comparable times in 2000 and 2008.... . A substantial rise in the district court judge retirements and elevations to senior status have fed the vacancy count. Almost 50 percent more judges (239) have risen to senior status under Obama than did under George W. Bush, according to judicial records.... When FBA members visited with their lawmakers during Capitol Hill Day in May, they explained how high numbers of vacancies on the federal bench harm the delivery of justice and the economic interests of litigants. That impact is worsened further by increased filings of lawsuits, without comparable increases in judgeships.
Civil and criminal filings in the federal district courts are substantially higher than they were 20 years ago—rising 28 percent since FY 1993. But the number of federal judgeships created by Congress to handle these filings has barely changed, growing by only 4 percent in the same two-decade period. During that same time, the time required for handling both civil and criminal cases in the federal courts increased, according to the Transactional Records Access Clearinghouse at Syracuse University. In fact he Syracuse University court data shows that the average time to trial in federal court civil lawsuits increased by a whopping 63 percent over a ten-year period ending in 2013."
Constitution being ignored (Leader-Telegram [WI], 07/26/16)
Ann Grewe, Letter to the Editor: "senators would rather play politics than do their jobs to examine nominated judges, then vote to approve or disapprove. They are doing nothing.
Since 1789, it has never taken this long for the Senate to do its job. ... the Republican majority is setting dubious records for the fewest working days and the fewest judges confirmed.
Wisconsin’s Sen. Ron Johnson, marching in lockstep with other obstructionists, refuses to have a hearing or vote on President Barack Obama’s appointment of federal Judge Merrick Garland to the U.S. Supreme Court. Johnson also refuses to consider judicial appointments to federal courts around our country, ensuring that a speedy trial in criminal matters is a thing of the past, while civil cases can take 2 or 3 years to be heard because of a lack of a judge."
Congress hurts Florida Courts (Cape Coral Daily Breeze [FL], 07/22/16)
Deborah Green, Letter to the Editor: "It has now been over 155 days since President Obama put forth a Supreme Court Justice nominee so Congress can fix our broken judicial system. The nominee is Judge Merrick Garland, the chief judge of the United States Court of Appeals for the District of Columbia circuit. The republican party is refusing to fulfill their constitutional duty of voting up or down for this well suited judge .... In fact, there are still 60 state federal vacancies and 30 federal emergencies in our courts across the country that Republicans have yet to nominate, that are currently crippling our United States Court systems."
Supreme Court vacancy watch Day 159: Meet Inga Bernstein, another blockaded nominee (Daily Kos, 07/21/16)
Joan McCarter: "Day 159 since Justice Antonin Scalia died and Mitch McConnell laid down his Supreme Court blockade: No meetings, no hearings, no votes on his replacement. It's also Day 122 since President Obama named Merrick Garland ... Meanwhile, here's a federal judicial nominee they're keeping off the bench: ... Despite the fact that the Republicans on the committee had a major problem with her sexual orientation, they approved her and sent the nomination on to the full Senate. Where it's stalled.
Because Mitch McConnell is refusing to do his job."
How the G.O.P. Outsourced the Judicial Nomination Process. (New York Times, 07/21/16)
Linda Greenhouse Op-Ed: "The N.R.A.’s instant and evidence-free denunciation of Judge Merrick B. Garland, President Obama’s nominee for the Supreme Court vacancy, may have appeared to be just piling on, since Mitch McConnell, the Senate majority leader, had already announced that no nominee would even be granted a hearing. But in fact, it was merely the tip of the iceberg.... Senator McConnell, who was then the minority leader, went to his friends at the N.R.A. to ask a favor: oppose the Sotomayor nomination and “score” the vote....The scenario was repeated the following year with the nomination of Elena Kagan .... The N.R.A. was also largely responsible for the defeat of Caitlin J. Halligan, a distinguished Obama administration nominee to the United States Court of Appeals for the District of Columbia Circuit. The president submitted her name three times, but she never got a vote.... And what about Merrick Garland, whose nomination to the Supreme Court passed the four-month mark the other day? The N.R.A. objects to his vote on the D.C. Circuit, where he is chief judge, to give a full-court rehearing to a three-judge panel’s opinion that the District of Columbia’s strict gun-control law was unconstitutional. He was joined in that unsuccessful vote by Judge A. Raymond Randolph, one of the more conservative judges ever to sit on the appeals court."
EDITORIAL: Zika threat gets worse, Congress skips town (Miami Herald, 07/20/16)
"In fact, and as shameful, Congress left a long list of unfinished business before lawmakers went off to campaign for reelection and attend the political conventions: a measure to prevent terrorists from acquiring firearms, scores of judicial confirmations, a broad criminal justice reform bill, basic appropriations bills and much more. And, of course, the Supreme Court nomination the Senate refused to hear."
EDITORIAL: The Report Card for July 21 (Asheville Citizen-Times [NC] , 07/20/16)
"Staff grades: F to the continued logjam on judicial appoints in the U.S. Senate, which of course includes a Supreme Court nominee who’s been languishing without a hearing for more than four months. Last week a batch of other nominees were presented for votes, only to be shot down by N.C.’s junior Senator, Thom Tillis, saying that “What we get are things that have nothing to do with doing our jobs.’’ ... considering the stonewalling on judges, it is in fact easy to say the Senate isn’t doing its job. One of the vacant seats, for the U.S. District Court for the Eastern District of North Carolina, has been empty for 10 and a half years."
Editorial: Congress skips out on vital business (Spokesman-Review [Spokane, WA], 07/20/16)
"The fact remains they left important business hanging as they headed for the airport.
For instance, Idaho is awaiting confirmation of David Nye as federal judge. He was nominated to be the state’s second federal district judge, replacing Judge Edward Lodge who took senior status last July. The state has been getting by with just one federal district judge for a year. Now it will wait another seven weeks, at best.
The Senate Judiciary Committee finally voted to confirm Nye on Thursday, but he can’t begin work until the full Senate takes a vote. Seventeen other judges have been waiting even longer to be confirmed. Judge Merrick Garland, who was nominated to the U.S. Supreme Court, can’t even get a hearing.
Spokesman-Review reporter Betsy Z. Russell, who covers Idaho politics, conducted research on “August” recesses and found this to be the longest one since they began, in 1971."
Obstructionist Tom Cotton: Speech light on Trump references (Arkansas Times, 07/19/16)
Max Brantley: "A legal website, Law360, wrote this week about Cotton's continuing obstruction of judicial appointments, particularly to the federal court of claims. The article demolishes Cotton's pretexts for refusing to fill seats on the important court and again raises an implication that he might be serving the special interest of a former law firm in doing so. ... court with a rising caseload isn't getting the help it needs. Tom Cotton stands in the way, despite multiple approvals of bipartisan-approved nominees for vacancies. "The ability of the court to decide cases is being inexcusably harmed by Sen. Cotton's failure to do his job," said Glenn Sugameli, founder of Judging the Environment and a senior attorney at Defenders of Wildlife. "There's an advise and consent duty." A prominent example of the problems the court faces without a full bench came in Judge Mary Ellen Coster Williams' comments at an October scheduling conference, in a case filed by the Jicarilla Apache Nation, according to Sugameli. While noting she could possibly hand trial off to another judge, Judge Williams said that she would otherwise have to move a trial originally scheduled for November back to July, her earliest available opening, with "a lot" of emergency cases to resolve first. "There's real, specific evidence that this is hurting the ability to resolve cases," Sugameli said."
Commentary: 125 days of not doing their jobs; Senators set new record of inaction on Garland nomination (Progressive Pulse [NC], 07/19/16)
Rob Schofield: "The U.S. Senate is setting a new record for inaction on a Supreme Court justice nomination this week. Today marks 125 days since President Obama submitted the name of Merrick Garland .... Here in North Carolina, we are, sadly, home to two of the chief obstructionists. Senator Richard Burr has not only refused to even address the Garland nomination in anything approaching a thorough way, he has been blocking nominees to the federal court in the state’s eastern district for a full decade now. Meanwhile, Burr’s junior partner, Thom Tillis made national headlines last week (see the cartoon below) with his asinine comment that Senate consideration of judicial nominations has “nothing to do with us doing our jobs.” The bottom line: North Carolina’s U.S. senators are not only not doing their jobs, they clearly don’t even understand what their jobs entail."
Decoding the Thurmond Rule (American Constitution Society Blog, 07/19/16)
Harsh Voruganti: "approximately one in ten federal judgeships is currently sitting vacant, leading to judicial backlogs in the affected courts. Unfortunately, due to an obscure Senate theory called the Thurmond Rule, this vacancy rate will only increase in the coming weeks.
Despite its moniker, the Thurmond Rule is not a formal Senate rule, but rather an informal theory. ... Regardless of the rhetoric on the issue, there is virtually no precedent for a complete shutdown of judicial nominations upon the summer recess.... In 1980, when the Thurmond Rule was supposedly first invoked, the Senate confirmed two circuit court judges and eleven district court judges after the August recess. In 1988, a Democratic-majority Senate confirmed two circuit court judges and nine district court judges after the August recess. In 1992, a Democratic-majority Senate confirmed three circuit court judges and nine district court judges post-August. In 2000, a Republican-majority Senate confirmed four district court judges in October. In 2008, a Democratic-majority Senate confirmed ten district court judges in late September. ... there is no reason why President Obama cannot see similar confirmation rates.
Additionally, many of the nominees confirmed in previous Congresses were nominated and processed late in the Presidential election season. ... In contrast to 68 judges confirmed by a Democratic Senate in the last two years of the Bush presidency, only 20 judges have been confirmed by the Republican Senate this Congress. ... the Senate maintains a responsibility to continue processing judicial nominations into late September and October. If the Senate fails to meet that goal, it cannot rely on the Thurmond Rule as a defense."