Editorials and Opinion
In Gorsuch, Conservative Activist Sees Test Case for Reshaping the Judiciary (New York Times, 03/18/17)
Eric Lipton and Jereney W. Peters: “Make no mistake,” Mr. Leo said in a speech last month at the Ronald Reagan Dinner at the Conservative Political Action Conference. “How we deal with this vacancy now, the strength that we as the pro-Constitution movement demonstrate in this fight, will determine the extent to which we are able to both nominate and confirm pro-Constitution judges as we move forward.”
Mr. Trump already has 124 judgeships to fill — a backlog created by Senate Republicans who blocked the confirmation of many of President Barack Obama’s nominees. That includes 19 vacancies on the federal appeals courts.
Because of the age of many judges today, the White House expects between 70 to 90 appeals court positions to open up over the next four years. That would give Mr. Trump the opportunity to fill anywhere from one-third to half of all appellate seats
How the Democrats Should Fight Gorsuch’s Nomination (Washington Monthly, 03/17/17)
Op-Ed by Martin Longman: the members of the Senate Judiciary Committee should question the nominee closely about his views on antitrust law.... lifetime appointments deserve special scrutiny, and that they shouldn’t be made on the narrowest of partisan majorities.... When a president seeks to fill seats on district and appeals courts, he knows that he’ll need the support of the home state senators ... . the blue slip system is still in place and it provides moral guidance as well as an important precedent.
The second main principle that must be applied here is that the Republicans must not be allowed to effectively steal a Supreme Court seat without any consequences.... And if the Democrats put up some kind of faux-fight only to cave on the theft of this seat, they’ll not only buy themselves three or four decades more of Scalia-like jurisprudence on the Supreme Court, they’ll infuriate their base and show that they are so weak that they can be rolled, defeated and humiliated without the slightest downside for the Republicans.
Dark money pays for court ads (Billings Gazette [MT,WY], 02/24/17)
Dick Spalding, Letter to the Editor: We do have a crisis, in no small part because of forces like Judicial Crisis Network, which helped fight successfully against the Republican Senate's confirmation of Obama's appointments.
Obama started his tenure with 54 vacancies and Trump is starting his term with 102. The U.S. Senate has sat on these vacancies for most of the past 18 months in hopes of filling these lifetime vacancies with Republican appointees. Some 38 of these are deemed "emergencies." Most of Judicial Crisis funding has come from ... right-wing groups .... This is enough to doubt Gorsuch's independence. The ads are pointed towards Montanans so that we will encourage Tester to vote for the confirmation.
Republicans are Hijacking the Courts. Will Senate Democrats Let Them? (Huffington Post, 02/22/17)
Algernon Austin: Many have called the theft of the Judge Merrick Garland’s appointment unprecedented, but this statement is not quite correct. It is unprecedented only if one ignores the fact that several of President Obama’s judicial appointments to lower courts were also blocked. Because Republicans blocked the appointment of Garland and many other judicial appointments, they have now delivered all of those seats to Trump.
What will Democrats do about this? Will they allow Trump to stack the judiciary or will they insist that these are stolen seats and therefore they do not belong to Trump?
In my view, a reasonable Democratic response would be to work to block Trump judicial appointments in proportion to the degree that Obama’s appointments were blocked.
Trump's ability to remake the federal courts is a lot harder than the numbers suggest (Conservative Review, 02/22/17)
Nate Madden: As Conservative Review’s Daniel Horowitz points out elsewhere, the process to find solid Constitution-revering jurists will be undoubtedly stymied in the upper chamber thanks to federal statute, traditions, and the “blue slip” rule in the Senate Judiciary Committee: "One of the reasons why we have many liberal judges from Republican presidents — such as Judge Robart, a W appointee — is because Democrat senators can “blue slip” any nominee from their state they dislike. Under Senate tradition, the Judiciary Committee will refuse to hold a hearing on any nominee that is officially opposed by the home state senators. This is why it’s so hard to get even a marginally conservative judge approved from blue states, much less someone in the mold of Clarence Thomas.
Even in red states with two GOP senators, the judicial nominees often reflect a legal mirror image of their political views, which are moderate at best. And in states with senators from opposing parties, Republicans have often cut deals to approve only those nominees who are acceptable to their home state Democrat senator."
Mitch McConnell Marvels At The Judicial Crisis He Created: After years of blocking Barack Obama’s court picks, Republicans now have “an excellent chance of clearing the deck of all the vacancies,” says the GOP leader. (Huffington Post, 02/05/17)
Jennifer Bendery: If there is a hallmark issue that defines Mitch McConnell’s time as Senate majority leader under President Barack Obama, it was his obstruction of judicial nominees....But he did so at the cost of driving up judicial vacancies around the country, so much so that the federal bench is now emptier than it’s been in decades and the number of judicial emergencies ― when a court is so overburdened it can barely function ― spiked from 12 to 43 in the two years since Republicans retook control of the Senate.... There’s a federal appeals court in Wisconsin that’s been waiting 2,586 days for a vacancy to be filled ― looking at you, Sen. Ron Johnson (R-Wis.). A district court in North Carolina has had a vacancy for 4,054 days ― hi, Sen. Richard Burr (R-N.C.). That’s more than 11 years.... The thing to watch now is whether Republicans use their control of the White House and the Senate to push through nominees who aren’t just conservative but have extreme right-wing ideologies.
Democrats are limited in what they can do to stop them from doing that. But they aren’t helpless. If they’re prepared to play hardball, like Republicans did with Obama’s judicial nominees, they could lean on a judiciary committee rule to unilaterally block any nominee from their state from moving forward.
Senate Democrats have the power to stop Trump. All they have to do is use it. (Washington Post, 01/27/17)
Adam Jentleson: Because every Senate action requires the unanimous consent of members from all parties, everything it does is a leverage point for Democrats. For instance, each of the 1,000-plus nominees requiring Senate confirmation — including President Trump’s Cabinet choices — can be delayed for four days each.
Trump’s judicial picks will affect far more than the Supreme Court (McClatchy newspapers, 01/23/17)
Michael Doyle: “Based on . . . Trump’s cabinet nominations, I am very concerned that he will try to advance judicial nominees that are outside the mainstream and that they will not reflect the diversity of the people they serve,” said former White House Deputy Counsel Christopher Kang.... “I think . . . Trump will be surprised to learn how much power home-state senators wield in the judicial nomination process,” Kang said.
Democrats Must Do What They Can to Protect the Supreme Court and the Nation (People For blog, 01/19/17)
Paul Gordon: In a sharp departure from the norm, Trump last year essentially delegated authority for selecting potential justices to right-wing groups like the Heritage Foundation and the Federalist Society.... Yes, there is a vacancy on the Court, but there shouldn’t be. ... It exists only because Senate Republicans took the unprecedented step of refusing to consider President Obama’s nominee, D.C. Circuit Chief Judge Merrick Garland. ... During Obama’s first term and into his second, the number of judicial vacancies skyrocketed, not because there weren’t nominees, but because Republicans blocked votes indiscriminately. ... Majority Leader McConnell ended the year without allowing the Senate to vote on the 23 circuit and district court nominees who had been languishing on the Senate floor for many months, sometimes for over a year, after having been thoroughly vetted and approved by the Judiciary Committee.
Confirm Inga Bernstein for the District of Massachusetts (The Hill, 01/13/17)
Carl Tobias: On July 30, 2015, President Barack Obama nominated Inga Bernstein, a longtime private practitioner, for a judicial vacancy on the District of Massachusetts. Bernstein is a well qualified, mainstream nominee who enjoys the powerful support of Massachusetts Democratic Sens. Elizabeth Warren and Ed Markey. The Senate Judiciary Committee approved Bernstein on May 19, 2016 without dissent. Nonetheless, she languished on the floor ever since, mainly due to GOP leaders’ refusal to allow her confirmation debate and vote. Because Ms. Bernstein is an experienced, moderate nominee and the District of Massachusetts needs this vacancy filled, the Senate must swiftly hold her final debate and vote.... Warren and other Democratic senators requested unanimous consent to vote on Bernstein and nineteen remaining district nominees who need floor votes, but the GOP objected.
How Barack Obama Transformed The Nation’s Courts: He filled two SCOTUS seats and made the judiciary more diverse than ever. But the GOP stopped him from doing more. (Huffington Post, 01/12/17)
Jennifer Bendery: Obama will leave office with 329 of his judicial nominees confirmed to lifetime posts on federal courts. That includes two U.S. Supreme Court justices and four judges on the D.C. Circuit Court of Appeals, the two most powerful courts in the nation. Because of Obama, Democratic appointees now have a 7-4 advantage on the D.C. panel, and those judges will play a major role in deciding cases during the Trump administration related to environmental regulations, health care, national security, consumer protections and challenges to executive orders.
Obama also tilted the partisan makeup of circuit courts. Nine of the country’s 13 appeals courts now have majority Democratic appointees, compared with just one when he took office in 2009.
There is a caveat to his judicial success, however: When Republicans regained the Senate majority two years ago, they ground judicial confirmations to a halt. That has left 86 district court vacancies and 17 circuit court vacancies for President-elect Donald Trump to fill. That’s a huge number of court seats to fall victim to partisan politics. For some context: Obama inherited 59 district and circuit court vacancies when he became president. Trump is inheriting 103.
Editorial: Tit-for-tat politics in our statesman-less land (Journal Star [Peoria, IL], 01/10/17)
"Republican Senate Majority Leader Mitch McConnell. Asked recently about promised Democratic attempts to block any Supreme Court nominee of President Trump's, McConnell responded without so much as a wink to let us know he was in on his own hypocrisy. "Apparently there's yet a new standard now, which is to not confirm a Supreme Court nominee at all," he said. "I think that's something the American people simply will not tolerate."... If there's a "new standard" regarding Supreme Court nominees, it's because McConnell himself saw to it with Obama nominee Merrick Garland, whose chances expired last week without the McConnell- and GOP-led Senate holding so much as a single hearing on him. Obviously Americans "tolerated" that. The real question is whether they should continue to "tolerate" McConnell's willful amnesia, as it's not the first time."
Jeff Sessions Has a History of Blocking Black Judges: "The senator has a problem putting African Americans on the federal bench in Alabama." (Mother Jones, 01/09/17)
Pema Levy: Alabama is nearly 30 percent black, but only three African American judges have ever sat on a federal bench there. Advocates for judicial diversity in the state say that in recent decades, that's thanks largely to Jeff Sessions, the Republican senator from Alabama whom Donald Trump has nominated to be his attorney general. During his 20 years in the Senate, they say, Sessions has used his perch on the judiciary committee to block nearly every black candidate for a judgeship in his state.... The only exception to this pattern was the confirmation of Abdul Kallon, a black lawyer, to a federal district judgeship in 2009. But because Kallon replaced retiring Judge U.W. Clemon, a Jimmy Carter appointee and the first African American federal judge in Alabama, the diversity of the state's bench didn't change. ... Sessions' support of Kallon only went so far. When Obama nominated Kallon to the vacant 11th Circuit seat in February 2016, Sessions opposed his confirmation.
Editorial: Shaheen, Hassan and nominees (Concord Monitor [NH], 01/08/17)
" Republicans stalled for a record 293 days to block President Obama’s nomination of moderate jurist Merrick Garland to replace the late Justice Antonin Scalia on the Supreme Court in a strategy designed by Senate Majority Leader Mitch McConnell. With his usual shameless hypocrisy, McConnell warned Democrats last week that the public wouldn’t countenance delay but we expect slow action by Democrats eager to pay Republicans back for denying Obama a Supreme Court seat....Shaheen and Hassan will get a chance to vote on several nominees and they should, and almost certainly will, vote to reject any with conflicts of interest or an avowed attempt to destroy the agencies they were picked to lead. On others, they could do New Hampshire and the nation a service by lobbying Republican senators who are not inflexible ideologues, that would be a waste of time, but who have their own reservations about a nominee.
Supreme Court nominations must still be passed with 60 votes and Democrats can be expected to filibuster a controversial nominee.... It’s not unheard of for a nominee to withdraw his or her name during or after intense Senate scrutiny. Shaheen and Hassan should make nominees prove that they deserve to hold the positions Trump has named them to."
[Editorial] Cheers and Jeers ... (Butler Eagle [PA], 01/07/17)
"Jeer: As the U.S. Senate embarks upon a new session, it continues to fail to live up to one of its basic duties: staffing the federal courts that deal with everything from criminal to civil concerns in Pennsylvania.
Pennsylvania’s Western District court has struggled since 2013 with vacant judicial posts. There are now four vacancies — the most of any federal district court system in the country.
It doesn’t have to be this way. The district has two nominees (Butler County Judge Marilyn Horan and U.S. Magistrate Judge Susan Baxter) who have already cleared committee votes in the Senate. Another jurist, Robert Colville, is also ready to step up to the federal bench.
But now there are questions as to whether they are too moderate for President-elect Donald Trump, who has promised to appoint right-wing judges to the bench.
This is a ridiculous and harmful state-of-affairs, and the Senate should be ashamed of itself. They need to do their jobs and fill these district court vacancies with all possible haste."
Opinion Anti-Obama Republicans have created a judicial emergency (Los Angeles Times, 01/07/17)
Jeffrey Wade,Letter to the Editor: Sadly, the lack of action on judicial appointments is only one example of the harm the GOP has inflicted on our judicial system ... But taking your advice one step further: Trump should nominate Garland Merrick to the Supreme Court.... The country would win by having a full Supreme Court and an appointment that is not ideological.
Lowry: Make Jeff Sessions wait a little bit (Record [NJ] , 01/07/17)
Column by Bruce Lowry, an editorial writer for The Record: the painfully long wait that Bergen County counsel Julien Neals – nominated to the federal bench by President Obama – was forced to endure by the Republican-led U.S. Senate. By last year’s end, Neals, a man Sen. Cory Booker has described as one of the “most impressive people” he has met in professional life, had waited 674 days without being given a vote by the full Senate.
Now contrast that, along with the Senate’s refusal last year to hold hearings on Merrick Garland for the Supreme Court, against Republicans’ 180-degree turn toward expediency on President-elect Donald Trump’s nomination of Sen. Jeff Sessions of Alabama to be the next U.S. Attorney General.... it should be alarming for anyone who cares about this nation or its laws that he is being fast-tracked, despite deep concerns about his civil rights record, while Neals, an African-American championed not only by Booker but many in the New Jersey legal community, was made to wait … and wait … and wait.... Julien Neals had to wait 674 days for no good reason. There is plenty of reason to make Jeff Sessions wait
Fix nation's judicial staffing crisis (Detroit Free Press [MI] , 01/07/17)
Carl Tobias, Op-Ed: On Tuesday, when the 114th Congress adjourned, the nominations of 51 individuals whom President Barack Obama selected for the circuit and district courts expired. Now that the new Senate has convened, Obama should attempt to fill some of the 104 vacancies, 42 of which are “judicial emergencies,” by renominating numerous well-qualified, mainstream nominees and urging their prompt Senate confirmation.... Obama must quickly renominate the 20 well-qualified, mainstream district nominees the Senate Judiciary Committee approved without dissent. GOP senators proposed and supported most, and they have languished for months. Obama should also seriously consider renominating the three outstanding circuit nominees who earned panel approval. If renominated, the chamber must promptly vote on all of these nominees.
The Senate lacks time to process the remaining 28 nominees before Trump’s inauguration, but he must consider nominating again strong, consensus nominees who possesses GOP support.
Opinion: Anti-Obama Republicans have created a judicial emergency (Los Angeles Times, 01/07/17)
Carl Tobias: The Times editorial board accurately describes the severely deteriorated state of federal judicial selection and suggests that Republican obstruction during President Obama’s two terms in office is substantially responsible for the 100-plus current vacancies.... Indeed, the U.S. 9th Circuit Court of Appeals currently has four openings, all of which have been declared judicial emergencies. The editorial astutely states that Democrats could retaliate by similarly obstructing President-elect Donald Trump’s nominees. It also correctly observes that Trump could and should “make a significant gesture toward restoring a measure of normality” to the selection process by renominating the Obama nominees left stranded by GOP obstruction to be confirmed with bipartisan approval by the Senate Judiciary Committee. However, Obama can and should re-submit those nominees now, and the Senate should confirm them immediately.
Did Jeff Sessions block integration of south Alabama federal courts? (AL.com [AL], 01/06/17)
John Archibald column: Sessions in the latter 1990s - for the entire second term of President Bill Clinton - was able to keep a federal judgeship in Mobile vacant, rather than to allow it filled with someone he found objectionable.
And some say Sessions - who has been hounded by decades-old comments that have been seen as racist - wasn't just blocking nominees of a different political stripe. Those involved say he blocked the integration of the federal bench in the Southern District of Alabama.
Birmingham lawyer John Saxon was part of a Bill Clinton patronage committee that decided it was time to integrate the federal courts in Mobile. The Northern and Middle districts had already seen black judges and magistrates, but the Southern District remained lily white.... Saxon said the group sent name after name of candidates - at least two judges and three lawyers - to the White House for vetting. But Clinton's people hit a wall every time. It was Sessions - then a still-new junior senator but a member of the Judiciary Committee. He opposed every one of them.
"Sessions told the White House he couldn't accept any of those people," Saxon said.... He said he asked Sessions to "tell us the name of any African-American anywhere in the state that you find acceptable."
It's not as if there were no qualified candidates. ... Sessions didn't budge .... "We gave him the opportunity to put forth the names of African Americans, but he wouldn't do it," Saxon said. "It was the single most frustrating thing I've ever done."
[Editorial] Will Trump try to stack the courts? (San Francisco Chronicle [CA], 01/06/17)
"It’s no mystery why nearly one in eight federal bench slots is empty. Republicans have refused to vote on dozens of President Obama’s nominees .... The vacancies are nearly double the amount that Obama inherited from George W. Bush. The unfilled posts have created a logjam .... By Senate custom, court nominees must pass muster with home state senators. In California’s case this process is especially weighty. The federal appeals court in San Francisco has four vacancies, and six district judgeships are empty across the state. ... Given this “blue slip” process of vetting, the state’s senators, Dianne Feinstein and Kamala Harris, can block a White House nomination. ... During the Bush administration, the differences were negotiated"
COMMENTARY: Children in power (Greenville [SC] News, 01/06/17)
Joe Cunningham, Guest Columnist: McCain refuses to break rank with Republicans, declining to afford Judge Merrick Garland, President Obama’s nomination to fill the late Justice Scalia’s seat, so much as a confirmation hearing. But it was never just about President Obama. Running up to the election, on Oct. 17, 2016, McCain vowed to block anyone Hillary Clinton would nominate should she win. Anyone.
In the real world, this behavior is expected to occur only within children’s play areas.
Mitch McConnell's Political Moves Are Appalling, But Democrats Could Learn from Them (Esquire, 01/05/17)
Jack Holmes: The Lord of Obstruction had a message for Senate Democrats on Wednesday: No obstructing unless I'm the one doing it. Senate Majority Leader Mitch McConnell, who, after Antonin Scalia died with nearly a year left in President Obama's term declared that he would refuse to give any Supreme Court nominee a hearing, held a press conference following Minority Leader Chuck Schumer's pledge to contest Donald Trump's Supreme Court nominations. McConnell had a stern message for his opponents in The World's Greatest Deliberative Body: "The American people simply will not tolerate" any attempt to block SCOTUS appointees. The cynicism here is breathtaking. ... To be clear, McConnell's rhetoric here was disingenuous.... Republicans embarked on an unprecedented campaign of obstruction, particularly with regard to judicial appointees,... If Democrats are going to survive, they need to ditch the weird worshipping of civility and learn to punch someone in the jaw. The Supreme Court nomination process—and the hearings for cabinet appointees like Jeff Sessions—would be a good place to start throwing a few jabs.
What will Feinstein, Harris do on judicial nominees? (Sacramento Bee [CA] , 01/05/17)
Bill Whalen, Hoover Institution: Traditionally, the Senate Judiciary Committee gives “blue slip” privileges to each nominee’s home-state senators. Unless both senators support the pick, the nomination won’t go forward. That gives Dianne Feinstein, the ranking Democrat on Judiciary, and new Sen. Kamala Harris extraordinary sway on California judicial nominees.
[Editorial] Fill the courts: Federal vacancies delay justice for all (Pittsburgh Post-Gazette [PA], 01/05/17)
Editorial Board: the four vacancies in the U.S. District Court for the Western District of Pennsylvania are the most anywhere. Across the nation, however, there are 112 vacancies, the highest profile being the empty seat on the Supreme Court left by the Feb. 13 death of Justice Antonin Scalia. There are also 86 vacancies in district courts, 17 in circuit courts of appeals, six in the Court of Federal Claims and two in the Court of International Trade.
Worse, only 59 candidates have been nominated for the vacancies, meaning there would be no quick way to fill nearly half of those seats even if the partisan bickering were to cease immediately. Forty-one courts have what are called “judicial emergencies”.... None of that takes into account what some observers believe is a pressing need for additional judges in parts of the country.... In Pennsylvania, Sens. Pat Toomey, a Republican, and Bob Casey, a Democrat, are known for collaborating on the selection of judicial nominees — and they plan to continue their collaboration. Mr. Casey’s office said the nominees are in limbo because the GOP leadership wouldn’t bring them to a vote.
Vacancies slow cases, dragging out justice for victims and hampering the fortunes of companies involved in contract or intellectual property disputes.
Democrats Can Easily ‘Win’ Coming SCOTUS Battle if They Play Their Cards Right (Mediaite, 01/05/17)
Opinion by John Ziegler: As a conservative, the toughest part about not supporting Donald Trump during the campaign was that there is open seat on the Supreme Court .... The first miscalculation on the right is the idea that, as McConnell seems to be doing, Republicans can remotely count on an uprising of public outrage if Trump is denied the ability to get anyone he wants appointed to the Supreme Court. This is flat-out delusional on multiple levels.... It will be very difficult for Trump to claim the moral high ground in any Supreme Court confirmation battle because only 46% of Americans voted for him and his own party just made it clear that living with eight justices is no big deal.... Many on the right think that if Schumer blocks any Trump nominee from getting an up or down vote that the GOP could simply “nuke” the filibuster.... with Orrin Hatch, Lindsay Graham, and John McCain almost certain “no” votes on such a move, this tactic seems far easier said than done. At the very least, Republicans would have to wait for Democratic obstructionism to become so extreme and obvious that the “nuclear” option is seen as a last resort. This requires time, probably lots of it, ... perhaps the most important thing Schumer would accomplish with a protracted fight on this turf would be that Trump would eventually tire of it and fall back to his natural instincts to negotiate a settlement.
HOW TO STOP A TRUMP SUPREME COURT NOMINEE (New Yorker, 01/04/17)
Jeffrey Toobin: Trump will soon announce his nominee to replace Antonin Scalia on the Supreme Court. Once he does, we’ll know within just a few hours whether there is any chance that the Senate will reject his choice. That’s because the politics of Supreme Court appointments operates at the speed of the modern news media, .... Kennedy knew that the conventional wisdom in Washington congealed quickly. If Bork, a judge on the D.C. Circuit and a former Solicitor General and a professor at Yale Law School, was seen as a shoo-in, there would be little chance to build a case against him. Likewise, McConnell knew that he might well lose a debate about the qualifications of the person Obama named to the Court. (Indeed, Garland’s pedigree, which includes two decades on the D.C. Circuit, is impeccable.)... Democrats will have to make a fast decision after Trump names his choice. (If they’re smart, they’re making up their minds about various candidates right now.) If they greet Trump’s nomination with politely stern vows of serious consideration and rigorous questioning at a hearing, confirmation will be nearly a certainty. If, instead, the senators break out the incendiary rhetoric of their late colleague from Massachusetts, then the new President may have a fight on his hands.
Mitch McConnell Says Americans Won’t Tolerate Democrats Blocking Supreme Court Nominations: He blocked the president’s own high court nominee for 293 days. (Huffington Post, 01/04/17)
Cristian Farias: Senate Majority Leader Mitch McConnell (R-Ky.) issued a warning to Democrats on Wednesday, one day after the Supreme Court nomination of Merrick Garland expired without any Senate action: Don’t consider staging a similar blockade on any of President-elect Donald Trump’s high court nominees.
“I think that’s something the American people simply will not tolerate and we’ll be looking forward to receiving a Supreme Court nomination and moving forward on it,” McConnell told reporters.... Garland ... was as mainstream a candidate as President Barack Obama could have offered. McConnell’s admonition that the American public may not put up with prolonged Democratic obstruction is curious in light of his own plan to not lift a finger on any of Obama’s nominees