Editorials and Opinion
The Republicans and Court Vacancies (New York Times, 06/22/16)
Prof. Carl Tobias, Letter to the Editor: "“The Senate’s Confirmation Shutdown” (editorial, June 9) is exactly right. The Republican Senate majority’s inaction has perpetuated and worsened the lower federal court vacancy crisis.
The sharp contrast between the number of President George W. Bush’s 68 circuit and district nominees whom the Democratic majority helped confirm in 2007-08 and the number of President Obama’s 18 circuit and district nominees whom the Republican majority has confirmed since 2015 is compelling. Those data show the absurdity of Republicans’ claim that they have restored the Senate to “regular order.”
The G.O.P. must promptly discharge its constitutional responsibility for advising and consenting on the president’s nominees. Indeed, the Senate could confirm the one circuit and 18 district well-qualified, mainstream nominees awaiting final votes in 30 minutes."
As I see it: Who's (left) to judge? (Telegram & Gazette [MA], 06/22/16)
Thomas Tobin: "The well-publicized vacancy on the Supreme Court isn’t the only one facing the federal judiciary. Right here in Massachusetts, the retirement of Judge Douglas Woodlock has left a vacant seat on the state’s federal district court. ... The Senate has been mulling over his proposed replacement, Inga Bernstein, for over 300 days and counting.... While Inga Bernstein and another 59 nominees across the country await further action by the U.S. Senate, judicial vacancies have myriad real-world consequences. The fact that there are a total of 89 judicial vacancies to the federal bench is indicative of the gridlock .... In one jurisdiction, North Carolina, there's a judicial vacancy that's been open for more than a decade.... Professor Carl Tobias found that judicial vacancies undermine the ability of the federal courts to provide “expeditious, inexpensive, and fair case resolution.” Put simply, vacancies in the federal judiciary “erode justice.”
Fewer judges mean that available resources are further constrained, especially that of arguably the scarcest resource of all -- time. In thirty jurisdictions across the country, dockets are so backlogged that they have been declared judicial emergencies.... more than 10 percent of more than 800 lifetime-appointment judicial posts within the federal judiciary are currently unfilled."
Statement of ABA President Paulette Brown Re: Evaluation of Supreme Court nominee Merrick Garland (American Bar Association, 06/21/16)
"The American Bar Association’s Standing Committee on the Federal Judiciary, which is independent of the ABA’s policy-making and governing entities, has finished its intensive peer review of the qualifications of Judge Merrick Garland, President Obama’s nominee for Associate Justice of the United States Supreme Court, and has rated him “Well Qualified.”
It is now imperative that the Senate fulfills its constitutional responsibilities to consider and act promptly on the Supreme Court nominee.... While the Court continues to function, its 4-4 decisions do not establish precedent and leave open questions on issues that are vital to the lives of everyday people. The prospect of a deadlock also will result in more cases being returned unresolved to lower courts. Cases with controversial issues that need a decision will more likely be avoided by the court. The confirmation process must therefore continue to proceed with all deliberate speed.
In addition to the Supreme Court seat, there are 83 current vacancies on the Courts of Appeals, District Courts and the Court of International Trade. Our nation is disadvantaged when the federal judiciary does not have enough judges to hear cases and resolve disputes in a thorough and timely fashion."
The glaring omission in the New York Times’ gun debate coverage; The Grey Lady downplays Congress' chances of passing reform with nary a mention of the GOP's radical obstructionism (Salon.com, 06/21/16)
Eric Boehlert: "Today’s Republican Party is acting in a way that defies all historic norms. We saw it with the GOP’s gun law obstruction, the Violence Against Women Act obstruction, the sequester obstruction, Supreme Court obstruction, minimum wage obstruction, 9/11 first responder obstruction, government shutdown obstruction, immigration reform obstruction, Chuck Hagel’s confirmation obstruction, Susan Rice secretary of state obstruction, paid leave obstruction, Hurricane Sandy emergency relief obstruction, the Clay Hunt Suicide Prevention for American Veterans Act obstruction, and the consistent obstruction of judicial nominees." [Link to each]
Commentary: Action needed on federal judges (Greenville [SC] News, 06/20/16)
Tommy Tobin, Guest Columnist: "Is the chief justice elect of the South Carolina Supreme Court qualified to be a judge? The answer should be an obvious yes, however it has lingered unanswered for more than three months in the U.S. Senate. South Carolina’s Sens. Tim Scott and Lindsey Graham have yet to weigh in on Chief Justice-elect Donald W. Beatty’s fitness as a federal judicial nominee.... The American Bar Association (ABA) rated Beatty as unanimously well qualified to fill the post that has been vacant for nearly three years. Chief Justice Beatty is not the only South Carolina judicial nominee currently awaiting our Senators’ assessment. Spartanburg’s Donald C. Coggins Jr. was also nominated in February. ... Currently, federal judges in the District of South Carolina have weighted case loads of over 500 cases per judge. The dockets are so jammed that the District, which encompasses the entire state, has been declared a judicial emergency.... The U.S. Supreme Court is missing a ninth Justice. The current nominee, Merrick Garland, is facing a blockade in the Senate.... our federal judiciary is facing 90 vacancies, which represents approximately 10 percent of all judicial posts. South Carolina’s senators can and should take action to remedy the situation here in our state’s federal court system. As reported elsewhere, Carl Tobias, a University of Richmond law professor and expert on judicial appointments, noted that the two open seats in our states could be filled later this year if Senators Graham and Scott agree to support their nominations.... the Senate has made it harder for the judiciary to do its job and skillfully administer justice. The Senate and especially Sens. Graham and Scott should evaluate judicial nominees on whether they are well qualified for their positions rather than the politics of the moment."
Tom Cotton’s Despicable Admission: The Cassandra Butts Vote (Peacock Panache, 06/20/16)
Sheila Kennedy: "Cotton has been one of the Republican Senators refusing to act on judicial vacancies–from the Supreme Court down to the District Court level–simply because Obama is President.
It’s bad enough that the federal courts are so understaffed that Americans are being denied access to justice. But according to several news reports, Cotton isn’t just participating in the GOP’s willingness to indulge partisan spite at the expense of the common good. He’s twisting the knife.
Consider, for example, the New York Times’ Frank Bruni’s report on Cassandra Butts’ nomination to serve as the United States ambassador to the Bahamas."
Commentary: Judicial branch has been under GOP assault for years (Northern Virginia Daily, 06/17/16)
Steve Foreman: "We have Senate Republicans who are currently denying the president’s constitutional right to nominate Merrick Garland to fill the Supreme Court vacancy under the fallacy that Obama is too far along in his term to nominate a replacement.... There is a backlog of federal, district and circuit courts judgeships left unfilled because Republicans refuse to approve them. ... If fulfilling their constitutional duty by doing their jobs was a priority for the Senate Republicans, we would not have the polarization and politicization of the judiciary that we now have and less of a logjam in the federal courts."
Carl Tobias: Senate should confirm Robert Rossiter for federal judgeship (Omaha World-Herald [NE] , 06/16/16)
Prof. Tobias Op-Ed: "Rossiter is a well-qualified, mainstream nominee who enjoys the strong support of Republican U.S. Sens. Deb Fischer and Ben Sasse of Nebraska. The Senate Judiciary Committee approved Rossiter Oct. 29 without dissent.... The Administrative Office of the U.S. Courts has designated Judge Bataillon’s vacancy an emergency ... Chief Judge Laurie Smith Camp has been urging that the Senate move quickly to fill the opening ... she explained: “Nebraska is among eight states having a single federal district and only three authorized judgeships (and recently) ranked first among these districts in its per-judgeship weighted filings, felony caseload, and supervised release hearings (so) the prompt confirmation of Nebraska’s newest federal district judge will be essential to ensure that federal litigation in Nebraska is adjudicated promptly and efficiently.”... Republican leaders have maintained they are returning the Senate to “regular order;” however, Rossiter and many other extremely competent, mainstream nominees have waited interminably for floor debates and votes. Several Democratic senators have requested unanimous consent to vote on Rossiter and 14 remaining district court nominees who need floor votes, but Republicans have objected. It is past time to schedule a debate and vote on Robert Rossiter."
The Problem With Congress Might Not Be Fixable (Bloomberg News, 06/15/16)
Cass R. Sunstein: "Congress is in the midst of a breakdown in longstanding institutional norms. The latest example is the Senate's refusal to hold confirmation hearings for Merrick Garland, President Barack Obama's nominee for the Supreme Court -- a refusal that is probably without precedent.... With the Republicans’ refusal to allow a vote on Garland, we’ve entered uncharted territory. The GOP would like to say that the norm for which they are speaking is quite narrow: No Supreme Court confirmations in an election year.
But their behavior is fully consistent with a much broader one: If a party can get away with refusing to confirm a Supreme Court nominee chosen by a president of the opposing party, that’s exactly what it will do. If so, appointments to the high court will become mired in the crassest form of partisan politics.... if a president’s judicial nominees are not confirmed, because the opposing party disagrees with their likely votes, federal courts will lack sufficient personnel to proceed expeditiously."
Commentary: A dysfunctional Supreme Court. Get used to it (Reuters, 06/15/16)
BY HERMAN SCHWARTZ AND WILLIAM YEOMANS: "Senate Republicans have become experts in dysfunction. They seem intent on spreading the contagion to the U.S. Supreme Court.... its inability to decide other important issues bring into stark focus the damage that Senate Republicans have inflicted on the court by refusing to consider the nomination of Judge Merrick Garland to fill Justice Antonin Scalia’s seat. ... Though the GOP had virtually declared a halt to confirmation of Obama-nominated judges, the heightened politicization of the Supreme Court still seems stunning."
Why today’s political climate scares judges (Denver Post [CO] , 06/12/16)
John Ingold: "Imagine, at this moment in American politics, that you are a judge.... To your east, in Washington, you see a U.S. Supreme Court hobbling along with only eight justices because of a standoff over who should appoint the ninth. You see political gridlock that has left unfilled 80 other vacancies on the federal bench across the country, according to legal scholar Carl Tobias."
Conner Eldridge is trucking (Arkansas Times, 06/10/16)
Max Brantley: "Sen. John ... Boozman has some explaining to do. He is derelict along with colleague Republican Sen. Tom Cotton in adequately responding to the party's abuse of the rule of law in politicking of judicial nominations"
Senate obstructionism is snarling the federal trial courts (Washington Post, 06/10/16)
Kyle Barry, Letter to the Editor: "along with vacancies and “judicial emergencies,” the number of pending judicial nominees has spiked as a result of a stagnant confirmation process. There are 54 judicial nominees waiting for confirmation, including 46 to the trial courts, and hardly any are the least bit controversial. By contrast, in June 2008, President George W. Bush had only 22 trial court nominees awaiting action in the Democratic-controlled Senate.
Second, the Republican leadership is blocking even nominees who have bipartisan support, including those selected and recommended by their home-state Republican senators. All 17 of the pending judicial nominees who have passed through the Senate Judiciary Committee did so by voice vote with support from the committee’s Republican members. Moreover, there are at least 25 trial court nominees who are both from states with at least one GOP senator and have home-state GOP support."
Rubio's flip-flop (Miami Herald, 06/10/16)
Ronald Newman, Letter to the Editor: "It is an understatement to attach the phrase “small-minded” to Rubio’s recent opposition to a federal judicial candidate whom he had supported, Mary Barzee Flores (Rubio blocks confirmation of judge he recommended, June 5).
Extreme political partisanship is almost always small-minded, and Rubio’s degeneration into opposing Flores just because she is not decidedly right-wingish will stand as a shameful keynote of his legacy"
EDITORIAL: The Senate’s Confirmation Shutdown (New York Times, 06/09/16)
"The Republicans’ blockade of Judge Garland is shameful, but it is only the most glaring example of what has been a historic slowdown in filling federal court vacancies across the country. This has been enormously damaging to the district courts, which deal with hundreds of thousands of cases annually, and where backlogs drag out lawsuits and delay justice. It also harms the appeals courts, ... By June 2008, the Senate had approved 46 of Mr. Bush’s judicial nominees; they confirmed a total of 68 by September. In contrast, Mr. McConnell’s Senate has confirmed only 20 of Mr. Obama’s judges since Republicans took control in January 2015, the slowest pace since the early 1950s. Appellate judges accounted for just two of those confirmations, fewer than at any time since the 19th century.
As a result of the impasse, there are now 83 vacant federal judgeships nationwide — 30 of which have such overwhelming case backlogs that the court system has classified them as judicial emergencies. By comparison, there were only about half as many when the Democrats controlled the Senate in 2008.
It would be easy to fill most of these vacancies if the Senate did its job. Currently, 37 of Mr. Obama’s nominees remain bottled up in the Senate Judiciary Committee, 30 of whom are still waiting for their hearing; 17 more have been approved by the committee but have not been scheduled for a full Senate vote."
Editorial: Marco Rubio playing partisan game on judicial appointment (Tampa Bay Times [FL], 06/09/16)
"By single-handedly blocking the confirmation of a qualified nominee for a federal judgeship, Rubio is complicit in creating a larger problem that does real damage to the functioning of the judicial branch. His new excuses for being an obstructionist do not justify blocking a confirmation hearing.
More than a year ago, President Barack Obama nominated former state judge Mary Barzee Flores to fill a vacancy on the federal bench in South Florida. Rubio has stalled her Senate confirmation by refusing to issue a so-called blue slip, which would clear the way for confirmation hearings. ... These are not reasons to block a confirmation hearing, and they only inject more partisanship into a vetting process that is designed to be bipartisan.... She has supporters across the political spectrum who praise her qualifications, and she deserves a confirmation hearing.
Rubio's tactics reflect a broader obstructionist strategy by Senate Republicans who have been stalling Obama's judicial nominations, leading to vacancies nationwide. The seat for which Barzee Flores is nominated has been vacant since May 2014 and is considered a judicial emergency, meaning cases are backlogged. The Washington Post reported that of 673 U.S. district court judgeships, 67 are vacant under Obama. That 10 percent vacancy rate is higher than George W. Bush, Bill Clinton and George H.W. Bush saw at this point in their presidencies — and each of them also faced a Senate controlled by the other party. ... The Senate's role is to offer "advice and consent" on the president's judicial nominations. Today's Senate Republicans are openly flouting that constitutional duty, and it is leaving the federal courts crippled."
Criticism Mounts for Senate GOP Obstruction of Judges (People For blog, 06/09/16)
"Republicans have done everything in their power to obstruct all of President Obama’s judicial nominees. ... The result is a substantial increase in the number of vacancies since the GOP took over the Senate, with the number of judicial emergencies (vacancies with overwhelming backlogs that impede access to justice) skyrocketing to 2½ times what it was at the beginning of this Congress.... They could start by holding a hearing for Supreme Court nominee Merrick Garland. They could also stop delaying committee votes on nominees like Don Schott for the Seventh Circuit (whose vote today was delayed simply because committee Republicans could delay it). They could hold hearings for qualified circuit court nominees like California’s Lucy Koh for the Ninth Circuit and North Dakota’s Jennifer Kelmetsrud Puhl for the Eighth Circuit, both of whom have the support of their home state senators. Republicans could also stop blocking hearings for Indiana’s Myra Selby for the Seventh Circuit, Alabama’s Abdul Kallon for the Eleventh Circuit, Kentucky’s Lisabeth Tabor Hughes for the Sixth Circuit, and Pennsylvania’s Rebecca Haywood for the Third Circuit, all of whom are currently facing obstruction by Republican home state senators who simply want to prevent President Obama from filling these vacancies."
Sen. Grassley is creating judicial backlog (Des Moines Register [IA], 06/09/16)
Mary Thornton, Letter to the Editor: "I am beyond outraged and disgusted with Sen. Chuck Grassley's continued obstinate obstruction of our government officials and business. He not only refuses to move forward with our Supreme Court nominee, but also 83 federal judge vacancies, with 37 of them in the Judicial Committee, all causing a backlog, burden on judges and unacceptable delay of justice."
Supreme Court vacancy watch Day 117: No judges for Elizabeth Warren (Daily Kos, 06/09/16)
Joan McCarter: "What's the Senate doing today instead of considering the Supreme Court nominee? Nothing to do with judges. ... But back to the judges they're not confirming. It's not for a lack of effort on Sen. Elizabeth Warren's part. On Wednesday, she attempted to bring up the votes of 15 uncontroversial and long-stalled nominees, all of whom were approved by committee months ago.... Not deterred, Warren went on to try to get votes for nine of the 15 judges in her original request. McConnell objected again. Then she reduced it to just four of them.
By that time, McConnell had left the floor and Utah Sen. Orrin Hatch was left to object, proving Warren's point. "There is no asterisk that says only when the majority leader has an embarrassing political problem or except when the president is named Barack Obama," in the constitution, said Warren. "It is not what the founders had in mind because it is small, it is petty and it is absurd.""
COMMENTARY: WUNC story highlights Burr’s “pathetic” blockade of African-American judicial nominees (Progressive Pulse [NC], 06/09/16)
Rob Schofield: "While the blockade of Supreme Court nominee Merrick Garland continues to draw well-deserved national headlines, the ongoing blockade of nominees to serve on the federal bench in North Carolina’s Eastern District (the longest such blockade in the country by four years) remains in the spotlight as well.... As has been the case for years, Senator Richard Burr — the man personally responsible for the blockade — gave an incomprehensible explanation for his action. After stating that the matter is not an emergency (despite the fact that the Administrative Office of the U.S. Courts officially labeled it a “judicial emergency” years ago) Burr dismissed President Obama’s latest effort to nominate a judge (former North Carolina Supreme Court Justice Patricia Timmons-Goodson) out of hand ... Obama has been trying to fill the position for almost his entire presidency and Burr has blocked those efforts (as arcane Senate rules give him the right to do) the entire time. What’s perhaps most striking and troubling about all of this are the racial overtones. Both of Obama’s nominees have been African-American and the Eastern District (which has a higher percentage of African-American residents than any other section of the state) has never had a black judge in its entire history."
So He Went There. (South Florida Lawyers, 06/09/16)
"That scoundrel, Marco Rubio discredited himself even further yesterday: "For about a year, Rubio has said little publicly about why he won’t allow a vote on Mary Barzee Flores." But Rubio and his office say there has been so much misinformation spread that he now feels compelled to go public with unflattering specifics about Barzee Flores that, out of respect to her, he tried to keep quiet. 2OH SURE!!!! Nothing like using the power of political office to smear a decent, talented public servant who would make a wise and fair federal jurist."
MARK FERRULO: CRIPPLING THE SUPREME COURT (Florida Politics, 06/08/16)
"While the Senate is dragging its feet, the president is moving forward with filling empty seats throughout out federal courts. On April 28, he announced three qualified nominees for District Court seats in Florida.
Thanks to obstruction from Sen. Rubio and other Republican Senators, only 15 federal judges were confirmed last year — a record low. The lack of judges has led to record backlogs in courts in Florida and around the country.
And now, the Senate’s inaction could also leave the Supreme Court short-staffed for more than a year.
Without a fully functioning Supreme Court, our constitutional rights could also vary across different parts of the country — a patchwork legal system brought about by a short-handed Supreme Court."
The Readers' Forum: Thursday letters (Winston-Salem Journal [NC] , 06/08/16)
JANE FREEMONT GIBSON: "Burr blocked his own federal District Court nominee, Jennifer May-Parker, for purely political reasons. He’s done the same with Justice Patricia Timmons-Goodson, even though the judicial branch is dangerously short on judges.
This kind of political shenanigans needs to end. I’ve had enough of this childishness."
Elizabeth Warren Has Had It With Mitch McConnell’s ‘Petty’ Behavior: The majority leader rejected the Massachusetts senator’s bid to advance judicial nominees with bipartisan support. (Huffington Post, 06/08/16)
Michael McAuliff: "Sen. Elizabeth Warren (D-Mass.) accused Republicans of pure political obstruction of President Barack Obama’s judicial nominees Wednesday, prompting a shrug from Majority Leader Mitch McConnell (R-Ky.), who objected to her attempt to expedite 15 long-stalled appointees.
Warren took to the Senate floor in the afternoon seeking unanimous consent to bring up all the noncontroversial judges who have passed the Senate Judiciary Committee, but have not received votes on the Senate floor.
Pointing to a report she released Monday, the Massachusetts senator noted that Republicans have been approving nominees at a glacial pace since taking over the Senate in 2014, approving just 18 judges in this Congress. Judicial vacancies have skyrocketed from 43 to 89."
Chuck Grassley’s Two-Year Campaign of Senseless Obstruction of Judicial Nominees (Justice Watch, 06/08/16)
"Since Republicans took over the Senate in January 2015, judicial nominees have been subject to systematic, politically motivated obstruction led by Senate Judiciary Committee Chairman Chuck Grassley.
This senseless obstruction goes beyond the unprecedented refusal even to give Supreme Court nominee Merrick Garland a hearing. Under Grassley’s leadership, this Congress is on pace to be the worst for judicial confirmations in more than a half-century. While Grassley refuses to consider dozens of qualified, noncontroversial nominees, the number of judicial vacancies has nearly doubled, and the number of officially-designated judicial emergencies has increased 150%. While leading the Judiciary Committee, Grassley’s prioritized partisan politics over staffing our courts, needlessly creating a judicial vacancy crisis that threatens our nation’s justice system."
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."
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."