Editorials and Opinion
Editorial: Majority rule (Tulsa World [OK] , 11/25/13)
"The U.S. Senate voted to change rules governing filibusters last week, clearing the way for faster confirmation of presidential appointments to most federal slots....we approve of the move for nonpartisan reasons it will clear some of the gridlock dominating Congress ... the filibuster should be the last resort, not an ordinary tactic. Historically, there have been 168 filibusters of executive and judicial nominees and half of them occurred during the Obama administration."
4 comments Jeff Merkley leads against Senate filibuster gridlock: Editorial (Oregonian, 11/24/13)
"On presidential appointments, the filibuster has been massively expanded from personnel questions to policy objectives. It's been used to block presidential goals by preventing the confirmation of anyone to major positions such as the D.C. Court of Appeals, ... Only when the failure of the last agreement became clear – when a pledge of filibusters only in "exceptional circumstances" became a refusal to confirm anyone for three open seats on the D.C. Court of Appeals – did powerful senior Democrats such as California's Dianne Feinstein and Vermont's Patrick Leahy sign on, .... The change is a major gain for Merkley, and for the Senate. It should streamline the filling of important positions in the executive branch, and 93 empty benches in the federal judiciary – a gap that Chief Justice John Roberts has warned is dangerous."
Editorial: There's a simple solution for GOP (Reno Gazette-Journal [NV] , 11/24/13)
"Reid finally became sufficiently exasperated with the minority party’s attempts to reverse the outcome of the past two presidential elections and took that “nuclear option,” barring the use of the filibuster to prevent the president from appointing federal judges and Cabinet-level officials. It’s a measure of Reid’s respect for the long-standing prerogatives of senators that he waited so long. He wasn’t happy, but earlier this year he allowed Nevada’s junior senator, Dean Heller, to single-handedly block even a hearing on the nomination of Judge Elissa Cadish to the federal court in Nevada. It finally took the rejection by filibuster this fall of three nominees to the prestigious U.S. Court of Appeals for the District of Columbia to convince Reid to take action to limit the filibuster. (The court has four judges appointed by a Republican president and four by a Democratic president; five of six retired judges who still participate in cases were appointed by a Republican.)"
Editorial: Change, at long last (Times Argus [VT] , 11/23/13)
"Republican senators have used the filibuster, or the threat of a filibuster, to block routine action or appointments. There are more than twice the number of judicial appointments awaiting action now than there were at this point in either of the Bush presidencies."
Editorial: The filibuster falls, a victim of abuse (St. Louis Post-Dispatch [MO], 11/23/13)
"Now, with political partisanship as deep as it has been since Reconstruction, the abuses reached the point where Mr. Reid decided to pull the trigger.... The upshot was that the ability of the courts and the executive branch to do business has become severely compromised.... The proximate cause of the rule change was the GOP refusal to let three of President Barack Obama’s nominees to the U.S. Court of Appeals in Washington, D.C., come to a vote. That court, because it generally has jurisdiction over regulatory agencies, is regarded as second only to the Supreme Court in the impact of its deliberations. The current appeals court has done great damage to environmental and financial regulations.
Chief Justice John G. Roberts, himself an alumnus of the D.C. Court of Appeals, has written that at least a third of the cases that come before the Supreme Court deal with regulatory challenges. That’s one reason why judges from that appeals court often find their way to the Supreme Court. Currently there are four judges on the appeals court appointed by Democrats (including one of Mr. Obama’s nominees who was confirmed after a long delay earlier this year) and four appointed by Republicans. Five of the six senior judges, who are semiretired, are Republican appointees. Republican senators did not want the court’s overall conservatism diluted by Mr. Obama’s appointees, no matter how qualified they are. Republicans are correct that the Democrats played this game, too. But this year there have been an average of 69 vacant judicial seats, creating long delays and heavy caseloads. The highest number of vacancies during the Bush administration was 35."
With the filibuster nuked, bring on the liberal judges (MSNBC, 11/22/13)
Adam Serwer: "Democrats got a big win on Thursday in the filibuster reform. But there are still less commonly known procedural obstacles to nominating judges, ... The most significant of these procedural obstacles is the “blue slip” process. ... Leahy’s custom is to be very deferential to his fellow senators from both parties.... Republicans have taken advantage of Leahy’s deference to slow down judicial nominations–in some cases, even for names they have approved in advance. In September, Florida Republican Sen. Marco Rubio sank the nomination of William Thomas, who would have been the first openly gay black judge, by withdrawing support for his candidacy after previously having endorsed it. The blue slip process can act as a silent filibuster, a way Senators can block judicial nominations without drawing public attention to what they’re doing. ... ten nominations were stalled by Republican senators not returning their blue slips. The Democratic official also said that Arizona Republican Sens. Jeff Flake and John McCain have not returned blue slips for five nominees to the Arizona District Court – even though McCain has endorsed the candidates. There are still 93 vacancies on the federal bench, and only 51 nominees. ... “I assume no one will abuse the blue slip process like some have abused the use of the filibuster to block judicial nominees on the floor of the Senate,” Leahy said in a statement to msnbc. “As long as the blue slip process is not being abused by home state senators, then I will see no reason to change that tradition.”"
EDITORIAL: Senate took right step with curb of filibuster abuse (Fresno Bee [CA] , 11/22/13)
"The final straw was Republicans blocking three Obama nominees in the last three weeks to the U.S. Court of Appeals for the District of Columbia Circuit.... by keeping the three seats vacant, they preserved the court's majority of Republican nominees.
By delaying judicial nominees, Republicans have delayed justice in overburdened federal courts in California and across the country. According to a count this week, there are 75 vacancies in U.S. district courts, a full 11% of all seats."
Editorial: Majority rule: It’s time for the Senate to revive common sense (Pittsburgh Post-Gazette [PA] , 11/21/13)
"Republican minority’s latest use of a filibuster to obstruct three more judge nominations, ... Ninety-two vacancies exist among 850 federal judge positions on U.S. district and appellate courts across the country. That means nearly one in nine seats is empty. Some 38 of these are on courts that are overburdened in their caseloads. Even Supreme Court Chief Justice John G. Roberts Jr., appointed by Republican President George W. Bush, has urged the Senate to act expeditiously on the nominations, given the courts’ dilemma. ...cutting off a filibuster on these nominations with 51 votes — is more than justified by the country’s need for judges and the speedier justice they can bring all citizens."
The D.C. Distraction: Judicial Vacancies Beyond The D.C. Circuit (Above the Law, 11/21/13)
Tamara Tabo: "nationwide the federal bench is functioning with about a ten-percent absence of active judges. The Ninth Circuit has 17 open judgeships. The Eleventh Circuit has a whopping 13 current vacancies, with only four pending nominations to fill those seats. Notice not only the number of vacancies, but the lengths of time many of those vacancies have remained open.... The Senate and the president are right that we ought to be concerned about federal judicial vacancies."
Statement by the President (The White House, 11/21/13)
"And here's why this is important: One of a President's constitutional responsibilities is to nominate Americans to positions within the executive and judicial branches. Over the six decades before I took office, only 20 presidential nominees to executive positions had to overcome filibusters. In just under five years since I took office, nearly 30 nominees have been treated this way. ... And this obstruction gets even worse when it comes to the judiciary. The Constitution charges the President with filling vacancies to the federal bench. Every President has exercised this power since George Washington first named justices to the Supreme Court in 1789. But my judicial nominees have waited nearly two and a half times longer to receive yes or no votes on the Senate floor than those of President Bush. And the ones who eventually do get a vote generally are confirmed with little, if any, dissent. So this isn't obstruction on substance, on qualifications. It's just to gum up the works. And this gridlock in Congress causes gridlock in much of our criminal and civil justice systems. You've seen judges across the country, including a Bush-appointed Chief Justice to the Supreme Court, say these are vital vacancies that need to be filled, and this gridlock has not served the cause of justice; in fact, it's undermined it. Over the past three weeks, Senate Republicans again denied a yes or no vote on three highly qualified Americans to fill three vacancies on the nation's second-highest court, even though they have the support of a majority of senators. Four of President Bush's six nominees to this court were confirmed. Four out of five of my nominees to this court have been obstructed."
Senate to D.C. Circuit Nominees: It's Not You, It's Me (Huffington Post, 11/20/13)
Peg Perl, Staff Counsel, Colorado Ethics Watch: "The number of seats on the D.C. Circuit is set by legislation based on the recommendations of the nonpartisan Judicial Conference of the United States -- Chaired by Supreme Court Chief Justice John Roberts. By nominating individuals to fill seats already vacant on that court, President Obama (like President Bush before him who had four nominees confirmed to fill vacant seats on the D.C. Circuit) is merely fulfilling his constitutional duty ... 10 percent of federal judgeships across the country sit vacant. Each empty seat on the bench means slower justice for millions of American citizens and businesses who rely on our judicial system ... A diverse bench simply improves the quality of justice and the public's trust of the institution. Yet, the list of diverse nominees subject to Senate filibusters and delay has just grown by three names."
Sen. Leahy: Arguments of Convenience Block Judicial Appointments; Once described as unconstitutional by the GOP, filibustering has become its default strategy. (National Journal, 11/18/13)
Sen. Patrick Leahy: "Senate Republicans have abandoned this responsibility, using unprecedented filibusters to delay and obstruct President Obama from appointing to the federal bench even nominations that enjoy bipartisan support. Senate Republicans have forced cloture, a procedural mechanism to bring a matter to a vote, to end filibusters on 34 nominees, nearly twice as many nominees than required cloture during President Bush's two terms. Almost all of these nominees were, by any standard, noncontroversial and ultimately were confirmed overwhelmingly.
Republican obstruction has left the federal judiciary often with 90 or more vacancies over the past five years. ... Senate Republicans have abandoned this responsibility, using unprecedented filibusters to delay and obstruct President Obama from appointing to the federal bench even nominations that enjoy bipartisan support. Senate Republicans have forced cloture, a procedural mechanism to bring a matter to a vote, to end filibusters on 34 nominees, nearly twice as many nominees than required cloture during President Bush's two terms. Almost all of these nominees were, by any standard, noncontroversial and ultimately were confirmed overwhelmingly.
Republican obstruction has left the federal judiciary often with 90 or more vacancies over the past five years.... The unprecedented obstruction also has affected the Court of Appeals for the D.C. Circuit ... The same Republican senator who in these pages recently cited caseload concerns once noted that "comparing workloads in the D.C. Circuit to that of other circuits is, to a large extent, a pointless exercise. There is little dispute that the D.C. Circuit's docket is, by far, the most complex and time consuming in the Nation.""
Why Are Arizona’s Senators Holding Up Hearings on Arizona Judges? (People For blog, 11/18/13)
"Arizona's federal district courts are currently operating with six of their thirteen judgeships not only vacant but also designated as judicial emergencies, so you'd think that the state's senators would want to expedite the process of confirming five nominees to fill those vacancies. But you'd be wrong.
It turns out that far from ensuring that Arizona's half-empty district courts are fully staffed, either Sen. John McCain or Sen. Jeff Flake or both are keeping all five of President Obama's nominees for Arizona's courts from even getting preliminary hearings before the Senate Judiciary Committee. And because of the secrecy of the so-called "blue-slip" process that is delaying these nominations, we don't know which senator is holding up the nominees or even why they are doing so."
Why Does The GOP Have A Problem With These People? (Huffington Post, 11/13/13)
Jennifer Bendery: "barring extraordinary circumstances, the Senate is supposed to give nominees a vote. Pillard's filibuster is the latest example of how the Senate isn't holding to that standard anymore. Not only is she the third noncontroversial nominee that Republicans have filibustered in the last two weeks, but she is now the 20th Obama nominee who is either currently being blocked or was blocked and ultimately withdrew from the process. Those blockages cause a logjam that reverberates through the judiciary and the executive branch, as positions have gone unfilled at crisis levels dating back to 2007.... 13 judicial nominees have been returned to Obama and were not renominated or withdrew their nominations, four judicial nominees aren't moving because GOP senators won't let them advance in the Senate Judiciary Committee, and three other nominees (two judicial, one executive) were recently filibustered for reasons that had nothing to do with their qualifications.
The diversity of the group is hard to overlook. Ten of the sidelined judicial nominees are women, two are openly gay and nine are minorities (seven are African American, one is Asian American and one is Native American)."
Fixing the blame for the D.C. gridlock (Progressive Pulse [NC], 11/13/13)
Rob Schofield: "The next time someone tells you that the problem with D.C. politics is the refusal of President Obama and folks on what passes for the “left” to “compromise” with conservatives, ask them to read this Huffington Post article about the utterly absurd, take-no-prisoners obstructionism confronting a long and growing list of high-quality nominees put forth by the President to fill numerous vacancies on the federal courts .... And, of course, it’s just coincidence that so many of the stonewalled nominees are women and people of color."
Burr’s judicial obstruction part of a pattern (Progressive Pulse [NC], 11/07/13)
Rob Schofield: "North Carolina Senator Richard Burr is blocking, without explanation, the nomination of federal prosecutor Jennifer May-Parker to be the first African-American judge in the history of the U.S. District Court for the Eastern District of North Carolina. Sadly, as this infographic from the good folks at the Alliance for Justice in D.C. makes clear, the stonewalling of diverse court appointments by President Obama is a pernicious and widespread problem.”
REPUBLICANS OBSTRUCTING NOMINEES AGAIN (LIPPITT'S POLICY AND POLITICS BLOG, 11/03/13)
John A. Lippitt: "Republicans are back to blocking the President’s nominees for judgeships and executive branch positions by filibustering. ... Currently, there are roughly 90 vacancies for judgeships, many of which are considered judicial emergencies. These vacancies are having a negative impact on the functioning of the federal courts and their ability to deliver justice for the American people in a timely manner."
Texas still suffering from a shutdown of its own — in the federal judiciary (Dallas Morning News, 11/01/13)
Nan Aron Op-Ed: "Texas still suffering from a shutdown of its own — in the federal judiciary. ... When there are not enough judges, delays can stretch from months into years. Memories can fade, witnesses can die, families can be bankrupted. It’s a problem in much of the country, but the epicenter of the judicial vacancy crisis is Texas. Right now seven federal district court judgeships are vacant in Texas without even a nominee proposed to fill them. Two Texas seats on the 5th U.S. Circuit Court of Appeals also are vacant without nominees. One of these judgeships has been vacant for nearly five years; two others have been vacant for more than two years. (So, yes, former Sen. Kay Bailey Hutchison also shares responsibility.) Seven of the vacancies are so severe that the Administrative Office of the United States Courts has declared them judicial emergencies. ... Sens. Cruz and Cornyn didn’t get around to naming a committee until shortly after April Fools’ Day. The Fourth of July had passed before the committee asked for applications from potential nominees"
Vacant Judgeships = Long Wait for Florida Scales of Justice (Orlando Advocate [FL], 10/31/13)
Stephanie Carroll Carson: "Florida justice is not swift these days, in part because of empty judicial benches in federal courtrooms in the state. Right now four are vacant - one has been for more than 600 days - with three more vacancies on Florida's federal courts expected by next year....Currently Senator Marco Rubio will not give approval, saying he "takes his Constitutional responsibility to review lifetime judicial appointments" very seriously and cites concerns about Judge Thomas' record in state court." Nadine Smith, CEO of Equality Florida, said she shares Ferrulo's concerns about the empty Federal bench seats in Florida and pointed out that it was Rubio who suggested Judge Thomas to the President initially. They both believe the senator changed his position about the moderate judge - who is African-American and openly gay - after pressure from his Tea Party supporters."
Judge shortage: Senate should act quickly on appointments (San Jose Mercury News [CA] , 10/29/13)
Prof. Carl Tobias: "With the Senate's return from its recess, the chamber must decisively address the judicial vacancy crisis, which did not take a holiday. It has left nearly 10 percent of judgeships vacant over an unprecedented four years, a situation that the partial government shutdown and sequestration's already crippling effects on the courts have exacerbated."
Republicans' Texas and national judicial shutdowns must end (The Hill, 10/28/13)
Brent Budowsky: "Voters who despised the government shutdown and threats of driving America into national default, caused by recent extremism of Republicans in Washington, will equally despise the judicial shutdown caused by Republicans in Texas and the U.S. Senate. When Texas Republican senators refuse to suggest nominees to fill judicial vacancies for federal judicial posts serving Texas, and when Senate Republicans use obstructionist tactics and filibuster abuses to refuse to confirm highly qualified judicial nominees proposed by President Obama, the result is a judicial shutdown that destroys justice and harms all Americans. ... there are now nine Texas federal judicial vacancies, six of which constitute judicial emergencies. Similar problems exist in states that are represented by conservative GOP senators."
People in Silicon Valley yawned at the shutdown. They shouldn’t have. (Washington Post, 10/17/13)
Timothy B. Lee, The Switch blog: "Shutdowns, poorly-targeted spending cuts, and filibusters are preventing the government from performing basic services that they've performed without difficulty for decades. For example, a recent analysis by the Brennan Center finds that Congress has not only failed to fill judicial vacancies in a timely fashion, it's also failed to create new judgeships to keep up with population growth. As a result, federal judges are facing "unprecedented workloads." The resulting delays drive up the cost of litigation for technology companies along with everyone else."
Editorial, 10/16: 'It's the right thing to do' (Lincoln Journal Star [NE], 10/16/13)
"The confirmation process for federal judges has become alarmingly slow, with judgeships remaining vacant for months or years. Usually the delay is the fault of Congress, which refuses to bring confirmations to a vote....The problem has been building for decades and has become worse as the divisiveness in Washington has hardened. Currently, there are 93 vacancies -- more than one of 10 -- on the federal bench, with 52 nominations pending. About a third of those have been classified as “judicial emergencies” by the U.S. Court Administration."
What Can the Government Shutdown Teach Us About Judicial Emergencies? (American Constitution Society Blog, 10/16/13)
Rebekah DeHaven: "Congress’s work on judicial nominations, already gridlocked, has been affected too. The Senate did manage to confirm a few judges. The Senate Judiciary Committee, however, postponed an October 3 hearing to vote on the nomination of U.S. District Judge Robert Wilkins to a seat on the U.S. Court of Appeals for the District of Columbia Circuit and for 5 other District Court nominees and an October 9 hearing for the nomination of Matthew Leitman to the U.S. District Court for the Eastern District of Michigan. ... Many courtrooms across the country are beset with longstanding vacancies. There are 874 federal judgeships throughout the country. More than 10 percent of these, 91 judgeships, are vacant. There are 37 judicial emergencies....Having more than 10 percent of the federal judiciary vacant and 37 official emergencies represents a catastrophe for the administration of justice, and citizens’ access to the courts."
Editorial: Politics the spoiler: A judge's success story is rebuffed by a senator (Pittsburgh Post-Gazette [PA] , 09/30/13)
"The truth is Judge Thomas was the same judge Mr. Rubio supported initially....It probably helped with his far-right support that Judge Thomas was on track to become the first openly gay black man on the federal bench. The failure of the Senate to confirm judicial nominations has hamstrung the federal bench, particularly during the years of the Obama administration (the percentage of confirmations for a president's fifth year in office was 77 percent for Bill Clinton, 92 percent for George W. Bush and 75 percent for Barack Obama). The seat that Judge Thomas would have filled has been vacant 18 months. This is how grubby, shortsighted politics spoils an American success story."
World-Herald editorial: The backlog hurts courts (Omaha World-Herald [NE] , 09/25/13)
"Last year, U.S. District Judge Joseph Bataillon spoke at the University of Nebraska-Lincoln’s College of Law and talked about a big problem for our federal courts. The nation’s courts are heavily burdened, he said, by the backlog and delay in confirming federal judicial nominees. At that time, 79 seats stood vacant ... An analysis by the American Bar Association notes that even “if the nominee reaches the (Senate) floor, the vote may be filibustered or never scheduled. Delays and crippling vacancies result.”... it’s time for our leaders to agree to sensible reforms and remove this needless weight from an already overburdened court system."
EDITORIAL: Gazette opinion: Senate should step up and confirm Watters, Morris (Billings Gazette [MT,WY], 09/24/13)
"We call on the Senate, with the continuing endorsements of U.S. Sens. Max Baucus and Jon Tester of Montana, to approve these excellent judges expeditiously, an act that would return the state to its full complement of three federal judges and would quell an ongoing judicial emergency that has drawn on far too long. ... confirmations are badly needed. Two of Montana’s three federal judgeships are sitting empty, and that state of affairs has forced senior judges, with limited caseloads, to travel the state to keep dockets moving. The inefficiency has also drawn attorneys and other court personnel into that churn. In a vast, sparsely populated state like Montana, one with Indian reservations, millions of federal acres and an active drug trade, the hardships are even more acute.
Baucus noted in July that the Administrative Office of the U.S. Courts had designated the Montana vacancies as “judicial emergencies.”"
Marco Rubio: Cash is King! (South Florida Lawyers, 09/18/13)
"Blue slips, schmoo slips: Marco ... he is presently one of the most prolific fundraisers in the country.... So stop being self-centered and complaining about Marco's obstruction of the judicial appointment process, the resultant backlog of cases in the Southern District of Florida, and the attendant delay in access to Justice. He is busy. And after all, have you cut a check?"