Editorials and Opinion
Editorial: Grassley ignores judicial crisis (Des Moines Register [IA], 06/08/16)
"Democrats and Republicans are never going to agree on where the blame lies for the alarming number of judicial vacancies in the federal court system. ... But it is surprising to see the office of Sen. Charles Grassley, chairman of the Senate Judiciary Committee, dismiss these vacancies as a “manufactured crisis” undeserving of public attention. Regardless of who is to blame for the vacancies, the senator should at least recognize the value in having those critical positions filled. ... Since the Republicans took control of the Senate in 2015, confirmations have slowed to a crawl, with only 18 judges confirmed. At the same time, the president’s ability to fill vacancies on the federal courts of appeal have hit a brick wall .... What the senator neglects to say, however, is that Obama has also had four or five dozen more vacancies to fill, and he still has eight months to serve.... there are currently 67 judicial vacancies in the U.S. district courts, which translates to a vacancy rate of 10 percent. That’s a significantly higher vacancy rate than Obama’s three most recent predecessors faced at similar points in their presidency, according to the Administrative Office of the U.S. Courts.
To make matters worse, the number of judicial emergencies is roughly double what it was in May 2008 and May 2000 .... Regardless of who created this problem, Grassley is in a position to fix it and ensure that criminal and civil cases are being heard on a timely basis. Unfortunately, he appears to have no interest in doing so ... it’s the public, who suffer long delays in having their cases heard, who pay the price."
Is a 112 percent increase in judicial vacancies par for the course? (Brookings, 06/06/16)
Russell Wheeler: "The data in this short post come the Administrative Office, the Federal Judicial Center, and my own data collections. They demonstrate the feebleness of the current Senate’s vacancy-related performance compared to Senates during recent two-term president’s final two years, as of June 1 of the eighth year. Then, as now, the White House and the Senate were controlled by different parties."
How Not to Interview Mitch McConnell (Moyers & Company, 06/06/16)
Todd Gitlin: "“There is no dysfunction in the Senate anymore,” declared the Senate majority leader. Here’s Charlie Rose’s response: “Because Harry Reid is now the minority leader and you are the majority leader.”
Here’s how he didn’t respond: The US Judicial Conference considers that since 2015, when you became majority leader of the Senate, what they call “judicial emergencies” (based on caseloads and vacancies) have risen from 12 to 29. Why don’t you consider the Senate’s refusal to confirm or reject judicial nominations a dysfunction? Do you know that the Senate under your leadership has confirmed a total of 18 federal judges, compared to 72 in 1999-2000 when Trent Lott was the majority leader and 68 in 2007-08, when Harry Reid was in charge?"
Elizabeth Warren: Republicans, stop obstructing Obama (CNN, 06/06/16)
"Nowhere has that strategy been more insidious or persistent than in Republicans' efforts to block Obama's nominations to head agencies, fill judicial vacancies and staff other key government posts.
On Monday, I released a new report that documents the long and troubling history of Republican obstruction of Obama administration nominees -- a story that started at the very beginning of Obama's presidency.
Despite their statements and self-congratulatory videos to the contrary, when it comes to keeping the government staffed, Senate Republicans have flatly refused to do their jobs.
The latest example involves the nomination of Judge Merrick Garland to the Supreme Court.... Fewer district and circuit court judges were confirmed in President Obama's first term than in the first terms of the previous three presidents, thanks to Senate Republicans' stall-and-delay strategy. A majority of Obama's uncontroversial first-term judicial nominees -- those who were both reported by the Senate Judiciary Committee and confirmed by the full Senate overwhelmingly -- took over 200 days to be confirmed.
And since Republicans took charge of the Senate in 2015, judicial confirmations have virtually ground to a halt. According to the Alliance for Justice, Senate Republicans are "on pace for the lowest number of judicial confirmations in more than 60 years.""
Tom Cotton: Today's worst person in the world (Arkansas Times, 06/06/16)
Max Brantley: "It is a mean, pinched world in which Tom Cotton lives — a world where hurricane victims are punished so that he may make a political point. Where caseloads in important courts stack up so he may make a point. And where a good woman died in disappointment so that he could score a political point."
Elizabeth Warren Details ‘Extreme’ Republican Obstruction: Meanwhile, a HuffPost/YouGov poll finds Americans oppose the GOP’s Supreme Court blockade by a 2-1 margin. (Huffington Post, 06/06/16)
Michael McAuliff: "Sen. Elizabeth Warren (D-Mass.) came out with a report on Monday detailing what she calls the “extreme” obstruction of President Barack Obama’s nominees — and a new HuffPost/YouGov poll suggests Americans agree with her, at least on the president’s Supreme Court pick.... Warren notes that when President Ronald Reagan was working with a Democratic-led Senate, about 80 percent of his noncontroversial judicial appointees were confirmed within 100 days of being nominated, including Supreme Court Justice Anthony Kennedy, who won confirmation in the election year of 1988.
In contrast, almost none of Obama’s court nominees were confirmed in less than 100 days, with most — about 60 percent of confirmations — taking more than 200 days.... When the GOP took control of the Senate in 2014, the pace of appointments slowed dramatically again. Court vacancies have jumped from 43 to 89, but McConnell and Republicans have acted to advance just 18 nominations. By comparison, the Senate confirmed 68 judges in George W. Bush’s final two years as president."
Rubio Blocks Another Judge He Recommended to Obama (Dispatches from the Culture Wars blog, 06/05/16)
Ed Brayton: "For the second time, Sen. Marco Rubio has blocked any consideration of a federal judge whose nomination he had personally recommended to the White House. They were qualified when he recommended them, now suddenly they aren’t.... Looks a lot like hypocrisy to me."
You’ll Never Guess Which Republican Senator Just Shot Down His Own Judicial Nominee (Medium, 06/04/16)
Grant Stern: "Outgoing Florida Senator Marco Rubio... stalled Federal judicial nominee Mary Barzee Flores In what can only be called obstruction theater of the absurd, Florida Senator Marco Rubio just crushed President Obama’s nomination of a highly qualified former federal prosecutor and state judge for a federal judgeship — who Rubio himself recommended for the job!
The Republican Senate has become determined to oppose any and everything done by President Obama for partisan reasons — like keeping the Supreme Court missing a member and here’s a singular specimen of the disease, Marco Rubio.
It’s highly unusual for a Senator to block their own appointments, but this seems to be the case"
Letter | 'Great national significance'? (Courier-Journal [KY] , 06/02/16)
James McMillin: "Senator McConnell should take a sip of the political medicine he offers to others in his newly released autobiography, "The Long Game." Quote: “On issues of great national significance, one party should never simply force its will on everybody else.”... This is painfully true in terms of ... (5) delaying federal judicial appointments of a sitting president, 59 more than just one for the Supreme Court; and (6) refusing to even allow Senate debate on Obama-nominated Supreme Court nominee Merrick Garland, which might be the ultimate sulk by the Senate majority Leader."
Time for GOP to stop playing games with judges | Letter (Express-Times [PA], 06/01/16)
Jodi Hirsh: "I'd love to have some of the Kool-Aid Blake Marles must have been drinking when he wrote the May 18 column, "Toomey has good record on federal judge appointments."
I'm not sure which Sen. Pat Toomey to whom he's referring, but clearly it's not the one who is currently refusing to fulfill his constitutional duty by holding a hearing for Supreme Court nominee Judge Merrick Garland, or the one who held up the eminently qualified Judge Luis Felipe Restrepo for the Eastern District of Pennsylvania for more than a year. Or the Toomey who who has not returned a blue slip for Rebecca Haywood for the Third Circuit Court of Appeals, or the one who hasn't been able to get committee votes on Judges Susan Baxter and Marilyn Horan, two exceptionally qualified Pennsylvania nominees who have been waiting since December."
City's businesses should support a vote on Obama's Supreme Court nominee: From entrepreneurs to big companies, we need government to put process over politics (Crain’s New York Business, 06/01/16)
OP-ED By Ken Biberaj, chairman of the board for the Manhattan Chamber of Commerce: "Unfortunately, the Senate’s failure to even hold hearings on the president's nomination is creating a profound sense of uncertainty that threatens to erode the climate for risk-taking and investment.... The court's inability to rule on cases important to business is delaying decisions, leading to divergent state regulations and uncertainty at the national level. From questions related to immigration, patent infringement, the Affordable Care Act or standards on arbitration costs, a host of topics are ready for their day in court but might not get one.... The process for judicial confirmations in general has already slowed down to such a dangerous degree that we are damaging one of our biggest competitive advantages as a nation: a high-functioning judicial system that can be relied upon to uphold contracts, enforce laws and create an environment of fairness that allows business to prosper."
Guest columnist: Sens. Burr and Tillis and the politics of obstruction (Asheville Citizen-Times [NC] , 05/28/16)
Gailya Paliga, president, NC National Organization for Women: "Burr and Tillis are refusing to allow hearings on the U.S. Supreme Court nomination. ... Retired N.C. Supreme Court Justice Patricia Timmons-Goodson was nominated on April 28 to fill a longtime vacancy of a U.S. District judge position in the Eastern District of North Carolina. Burr vowed to block her the same day. ... This federal court seat has been empty for more than 10 years. This vacancy was elevated to judicial emergency status years ago. Burr has never explained why he did not submit May-Parker’s name for consideration. Now, Burr is blocking another extremely well qualified African-American women from filling this vacancy.
Burr has caused and continues to cause the federal courts in North Carolina to be short-handed."
CAN SPLIT GOVERNMENT WORK? (Moderate Voice, 05/25/16)
ROBERT A. LEVINE, TMV Columnist: "The Senate’s refusal to confirm Obama’s candidate to replace Antonin Scalia on the Supreme Court, Merrick Garland, a centrist judge with impeccable credentials, is another example of Republican partisanship, ignoring past precedent. ... As bad as the rejection of Garland by Republicans has been their obstructionism in filling federal court appointments recommended by Obama, causing difficulties in the courts’ ability to function, with heavy caseloads for justices and long delays in handling cases. ... Republican Senators blocked Obama’s attempt to fill vacancies on regional federal courts of appeal. The senators refused to approve of candidates for judgeships in their states ahead of formal nomination"
The "Thurmond Rule" and other advice and consent myths (Brookings, 05/25/16)
Russell Wheeler: "Grassley’s description of the paucity, since 2000, of presidential election year confirmations after the summer recesses obscures the amount of election-year confirmations prior to the recesses. The Senate confirmed from four to eight circuit judges in each of those four years (2000, 2004, 2008, and 2012), compared to only one so far in 2016. And it confirmed, before the recesses in those years, 27, 24, 14, and 28 district judges, compared to only six so far in 2016. (And, any Thurmond “rule” notwithstanding, in those four years the Senate confirmed 36 district judges after the recesses—not to mention ten post-August circuit confirmations in 1984, 1988, and 1992, during and immediately following Thurmond’s chairmanship.).... Those examples should motivate the full Senate to consider at least the 21 district and one circuit nominees who have had hearings. Doing so could help close the yawning gap between the 114th Senate’s record of 18 total confirmations and those of its recent predecessors—72 in 1999-2000 when Republicans controlled the Senate and 68 in 2007-08, when Democrats did.... McConnell’s comparison is akin to saying that Congress treated a hypothetical President X fairly by providing slightly more hurricane relief funds than it provided President Y, even though President X’s term saw twice as many hurricanes as did President Y’s.
The judicial analogy to natural emergencies is vacancies.... The question, in other words, is not fairness to a president but fairness to litigants and judges. Section 2, Article 2 does not terminate the Senate’s “advice and consent” function once it confirms the same number of nominees as those of a prior president, or, despite any “Thurmond Rule,” once it leaves town in July for a month and a half of party conventions and presidential election year campaigning."
Benched! The “Thurmond Rule,” and other Republican excuses to avoid doing work (Justice Watch, 05/24/16)
"An extraordinary idea surfaced at the Senate Judiciary Committee’s weekly business meeting last Thursday. Senator Diane Feinstein, a member of the committee since 1993, proposed that senators stop debating the meaning of the so-called Thurmond Rule—which we’ve previously described as “a figment of the partisan imagination invoked to give an air of legitimacy to . . . pure obstruction”—and that instead members of the committee “just sit down and do our job” to fairly consider and process judicial nominees.... Since the Republicans took over in 2015, the Senate has confirmed a paltry 18 judges, putting it on pace for the fewest judicial confirmations in more than a half-century. Only two of the 18 confirmed are circuit court judges, a number that, if it holds, would be the lowest since the 55th congress in 1897-1898. And in the Judiciary Committee, Chairman Chuck Grassley is refusing to hold a confirmation hearing for a Supreme Court nominee who has already been pending for 70 days, to say nothing of the 29 lower court nominees who still need a hearing.... With the Republicans in charge, judicial vacancies have nearly doubled from 43 to 81, and judicial emergencies—the official designation for courts unable to keep pace with existing caseloads—have jumped from 12 to 29. ... at this point in the last Congress of President Bush’s administration, Senate Democrats had worked to reduce vacancies from 56 to 46 and judicial emergencies from 25 to 16."
Republican obstruction creates new bamboo ceiling for Asian American judicial nominees (Huffington Post, 05/24/16)
Christopher Kang, National Director, NCAPA: "President Obama has appointed more AAPI federal judges than all presidents in history combined, and the nine AAPI women he has appointed is even more remarkable considering there were only two prior to 2009.
While this is important progress, Senate Republicans are obstructing any further advancement by delaying consideration of President Obama’s five distinguished AAPI nominees—all women—to lifetime federal judgeships.... Judge Lucy Koh has been nominated for the U.S. Court of Appeals for the Ninth Circuit ... She would be just the second AAPI woman to serve as a circuit judge in our nation’s history. In June 2010, the Senate unanimously confirmed her to serve as a district judge ... by a vote of 90-0, but Judiciary Committee Chairman Chuck Grassley has not yet scheduled a hearing on her nomination.... Since Republicans took control of the Senate in January 2015, judicial vacancies have more than doubled, from 43 to 87..... empty courtrooms mean that everyone must needlessly wait .... The Senate has confirmed only 18 judicial nominees over the past 17 months—a pace so slow it hasn’t been seen in decades—while 55 nominees remain pending, subject to Republican obstruction and delay."
There’s plenty of time for Merrick Garland hearings, no excuse for GOP foot-dragging (Bangor Daily News [ME], 05/23/16)
Sherry Huber & Roger Berle, Republican members of Board of Directors, Maine Conservation Voters: "the blocking of Garland’s nomination is only the most recent and high-profile example of obstruction that has been taking place for years and left our federal courts without adequate numbers of judges to ensure the American people can have their day in court. As of today there are a total of 81 vacant judgeships across the country, with 29 of those unfilled positions resulting in workloads so high as to be declared a judicial emergency. Of the 57 nominees put forward by the president, 19 await a vote by the full Senate while 38 languish in the Senate Judiciary Committee.
There’s no excuse for that kind of foot-dragging. We need our federal courts to function and to reach decisions on the host of issues brought before them that shape our daily lives. Important issues, from civil and human rights to voting and campaign finance laws to environmental issues such as the EPA’s effort to control greenhouse gas emissions under the Clean Air Act ... Refusing to hold hearings and take an up or down vote on nominees is a dereliction of duty and an insult to the American people."
Senator Burr Causes 10 Year Judicial Vacancy (Fayetteville Observer [NC] , 05/23/16)
Column by Gailya Paliga, president, N.C. National Organization for Women: "Fayetteville's own extremely well qualified former N.C. Supreme Court justice was nominated on April 28 to fill a longtime vacancy on the federal court bench in Eastern North Carolina. ... I was shocked to read that Sen. Richard Burr vowed to block her the same day that she was nominated.... Sen. Burr refuses to do the U.S. Senate's job of advice and consent. ... Burr has caused and continues to cause the federal courts in North Carolina to be short-handed. Burr needs to fulfill his own constitutional responsibility and let the Senate do its job to fill this inexcusable 10-year judicial vacancy."
DOUG ROSS: Garland issue is more than decoration (Northwest Indiana Times, 05/18/16)
Column by Politics/History Editor Doug Ross: "U.S. Sens. Dan Coats and Joe Donnelly are pleased the Senate Judiciary Committee is holding a confirmation hearing today on Winfield Ong, who was nominated to serve as federal judge in the U.S. District Court for southern Indiana. It revives the discussion of Merrick Garland’s nomination to the U.S. Supreme Court.... It’s worth noting if Coats votes on Ong’s nomination, he won’t be waiting for his successor to make that decision."
Gailya Paliga: Time to fill federal court judge position (News & Observer [NC], 05/17/16)
Gailya Paliga, President, N.C. National Organization for Women, Letter to the Editor: "I was impressed to see that one of our own extremely well-qualified former N.C. Supreme Court justices was nominated April 28 to fill a longtime vacancy on the federal court bench in Eastern North Carolina.
Patricia Timmons-Goodson served as an associate justice ... I was appalled to read that Sen. Richard Burr vowed to block her the same day.... Burr has actually blocked two women from this position since 2013.
Burr has caused and continues to cause the federal courts in North Carolina to be short-handed. Burr needs to fulfill his constitutional responsibility and fill this longtime vacancy at judicial emergency status."
Is This the Worst Congress Ever? It can’t pass a budget, can’t confirm appointments, and now it can’t even scrounge up funding to address public-health crises. (Atlantic, 05/17/16)
NORM ORNSTEIN: "Now add the embarrassment of the unprecedented failure of fundamental fiduciary responsibility by the Senate to even acknowledge the right of a president to nominate an individual to fill a vacancy on the Supreme Court with eleven months to go in his term, and then the obdurate refusal to hold a hearing on a nominee many key Republicans, like Orrin Hatch, had praised to the skies before his nomination, before turning him into a nonperson.... The point man in this exercise, Senate Judiciary Committee Chairman Charles Grassley of Iowa, has become Obstructor-in-Chief.
The awful lapse on the Supreme Court nomination was part of a larger outrage, the failure to confirm a much larger number of nominees to both judicial and executive branch posts, a record for this Congress far more dismal than its comparable predecessors. ... There has been a huge spike in “judicial emergencies,” which are formally designated by the courts when unconscionable delays in justice are caused by heavy workloads produced via court vacancies."
Editorial: Toomey and the politics of obstruction (Pocono Record [PA] , 05/17/16)
"Clearly, Pat Toomey is no student of logic.
Otherwise, the Republican U.S. senator from Pennsylvania would not plead for approval of his nominees for federal court in Pennsylvania so soon after joining other GOP obstructionists in refusing so much as a hearing for President Barack Obama's Supreme Court nominee, Merrick Garland.... Courts need a compliment of judges to function properly. So Toomey is asking Senate Majority Leader Mitch McConnell for Senate action to confirm judicial nominees Marilyn J. Horan in Pittsburgh and Susan Paradise Baxter in Erie.
But Republicans, including Toomey, wouldn't give the president the time of day after Supreme Court Justice Antonin Scalia died suddenly in February, and President Obama, following the U.S. Constitution, nominated Garland. Republicans would rather have the court lack a critical ninth member for a year than grant a Democratic president so much as a courtesy hearing.... Normally people don't care much about judicial nominees. But by their partisan obstinacy Republicans have pushed the issue into the spotlight. Pat Toomey is refusing to perform his constitutional duty to provide "Advice and Consent" of a Supreme Court nominee while at the same time demanding action on his own court nominees."
Chris Fitzsimon: Burr’s absurd blockade of a judge in his home state (New Bern Sun Journal [NC], 05/17/16)
Opinion: "An African-American has never served as a federal judge in the Eastern District of North Carolina and Senator Richard Burr apparently intends to keep it that way, judging by his knee-jerk opposition to President Obama’s latest nominee to fill a seat on the court that has been vacant for 10 years, the longest vacancy in the country."
It’s Not Just Merrick Garland: Republicans Are Blocking So Many Nominees It’s Caused a Judicial Emergency: The judicial confirmation rate under the Republican-controlled Senate is less than half of what it was when Democrats held power under George W. Bush. There are so few judges that it’s hurting the country. (Daily Beast, 05/16/16)
JAY MICHAELSON: "“It’s absolutely absurd,” Marge Baker, executive vice president of liberal group People for the American Way (PFAW) told The Daily Beast. PFAW has been tracking the issue closely and released new findings this week. “And it’s qualitatively different from anything that has gone before.”... Over the past sixteen months, the Senate has confirmed 17 lifetime-appointment judges. In the same period in 2007-08, the Democrat-led Senate confirmed 45; in 1991-92, when Democrats controlled the Senate and George H.W. Bush was president, it confirmed 82. In other words, the GOP Senate is confirming just 38 percent as many judges as the Democratic 2008 Senate, and 21 percent of the Democratic 1992 one.... PFAW’s own analysis, released this week, revealed that under Grassley’s leadership, the judicial confirmation rate has been 25%. Leahy’s was 58%. A recent PFAW press release dubbed Grassley the “Do-Nothing Chairman.” ... Baker told The Daily Beast that the truly shocking inaction is on lower court nominations.
“I’ve been following this issue for thirteen years,” she said. “District court vacancies were never in play—they were routine. But now, the obstructionism has gotten down to the district court level.”
A similar point was made in a New York Times op-ed by the recently retired Judge Shira Scheindlin .... Indeed, the number of “Judicial Emergencies”—a formal designation by the federal court system for when the per-judge caseload is so high that it endangers access to justice—has nearly tripled in the last two years, from 12 in January 2014, to 32 in April 2016.
By way of comparison, there were 19 such judicial emergencies at this point in George W. Bush’s second term—and the number had gone down since the Democrats took control of the Senate."
Supreme Court vacancy watch Day 93: At least one federal judiciary nominee will get a vote (Daily Kos, 05/16/16)
Joan McCarter: "There were 19 judicial emergencies during the mid-point of George W. Bush's final year in office, a number that had been reduced by the Democratic Senate and a judiciary chair and Senate leader who took their jobs seriously. The Garland blockade is an extreme manifestation of what the Republicans have purposefully done to the federal judiciary—but it sure doesn't tell the whole story."
Confirmation vote is about who can serve as federal judges (Justice Watch, 05/16/16)
"Tonight the Senate will vote on the nomination of Paula Xinis to be a district court judge in Maryland. It is just the seventh confirmation vote on a judge this year, and Xinis, who is endorsed by both Maryland senators and has been rated “unanimously well qualified” by the American Bar Association, should be easily confirmed. ... Xinis’ professional background in civil rights and indigent defense is precisely the sort that, as a matter of overwhelming statistical fact, the federal bench lacks. The absence of such experience comes at the expense of fair courts and sound judicial decisionmaking, as Justice Byron White observed while serving on the Supreme Court with longtime civil rights lawyer Thurgood Marshall. ... The Judiciary Committee voted Xinis onto the floor via voice vote, without any opposition. The same result should hold with her confirmation vote. If not, the senators who vote against her will be sending a dispiriting message to our nation’s legal community, including law students beginning their careers: If you want to be a judge, the easiest path forward is a career spent protecting the powerful, and anything else will lead to smear campaigns and personal attacks."