Editorials and Opinion
GOP Blocks Judiciary Committee From Even Meeting (People For blog, 12/12/13)
"Senate Republicans have escalated their sabotage of the judicial nominations process this week, most recently by forcing the Senate to wait until 1:00 am this morning to hold a confirmation vote on Nina Pillard to the D.C. Circuit. ... The obstruction isn't just on the Senate floor: This morning, Republicans prevented the Senate Judiciary Committee from even meeting.... The committee has a busy schedule, with votes scheduled for 15 judicial nominees who have testified before the members and answered follow-up written questions. Among those are nominees for vacancies designated as judicial emergencies by the Administrative Office of U.S. Courts. Each one of the nominees has been fully vetted and has the support of their home state senators, including Republicans Mark Kirk (IL), Pat Roberts and Jerry Moran (KS), Lamar Alexander and Bob Corker (TN), Roy Blunt (MO), and Pat Toomey (PA)."
Editorial: 59 percent good enough (Scranton Times-Tribune [PA] , 12/10/13)
"The Senate engaged in representative democracy Tuesday, voting 56-38 to confirm a sound candidate to the U.S. Court of Appeals for the District of Columbia. With 59 percent of the vote, attorney Patricia Millett will fill one of three vacancies on the powerful 11-member court ... rampant abuse of the filibuster rule had created a case of minority rule with no respect for majority rights.... Republicans who misused the filibuster to block confirmations claimed that the D.C. court is under-worked, that they acted for economy rather than to keep a conservative majority on the court.
Yet the U.S. Judicial Conference's Standing Committee on Judicial Resources had reported to the Senate that the court's workload has been consistent for 10 years, during which the Senate confirmed three of President George W. Bush's nominees to the court. ... President Obama should use the restoration of democracy in the Senate to re-establish timely access to the U.S. district and appellate courts."
Juan Williams: Sen. Jeff Merkley is the man of the year in Congress (The Hill, 12/09/13)
Juan Williams column: "Merkley, with a big assist from Sen. Tom Udall (D-N.M.), won the biggest vote of the year on Capitol Hill ... The two first-term senators successfully argued to the Democratic caucus that the GOP’s use of more than a quarter of the filibusters in history against President Obama’s nominees was one of the root causes of today’s dysfunctional Congress.... Merkley and Udall also made the case that resentment caused by the GOP’s frequent use of “holds” and filibusters polarized the Senate and led to the failure to deal with major issues ... That vote opens the door to a newly active Senate and a rush of votes on judicial nominations and agency heads.... there are 52 judicial nominations awaiting Senate action, including 17 who simply need to get a vote. The GOP recently blocked all three Obama nominees to the U.S. Court of Appeals for the District of Columbia without any regard to their qualifications. They claimed any nominee from the Obama White House tilted the court and its power to rule on federal agency regulations to the left."
Diplomacy has won over war-mongering (Watertown Daily Times [NY], 12/07/13)
Maire T. Zakrzewski: "the Senate finally changed its rules of the filibuster, the infamous tactic used in outrageous excess during the presidency of Obama. This tactic was not part of the Constitution, and it had been modified in the 1970s and was used sparingly until now. The Republicans had openly declared that they will do everything to prevent President Obama’s success, and one of their tools has been the filibuster. Now the new order of simple majority, instead of the 60 vote super-majority, will allow the essential administrative appointments being confirmed and the enormous backlog of judicial appointments to go through."
Milbank should know that Senate has changed its rules before (St. Louis Post-Dispatch [MO], 12/06/13)
Richard Orr letter: "What Reid did was in no way unprecedented, and Milbank should have known this....Right now there have been as many Obama judicial nominees held up by the Republicans as have ever been since the founding of the republic. Now that's what I call a power grab!"
Letter: Governor's Council vital to checks, balances (Berkshire Eagle [MA] , 12/04/13)
Michael J. Albano: "One senator of the 100-member body, for any reason, can hold up a nomination simply by not submitting a "blue slip" of paper to the chairman of the Senate Judiciary Committee. Currently, there are 31 positions in the federal judiciary that have been vacant for six months or more, with one vacancy in North Carolina dating back to 2006. Locally, the U.S. District Court in Springfield illustrates the point. Earlier this year, Superior Court Jeffrey Kinder withdrew as a candidate to the federal District Court. Judge Kinder, nominated by President Obama in 2011 with the bipartisan support of Senators John Kerry and Scott Brown, was denied a confirmation hearing for reasons still unknown to the public. Hampden County District Attorney Mark Mastroianni, elected as an Independent, was nominated to the same position in September, and still has not had his confirmation hearing scheduled before the Senate Judiciary Committee."
Editorial: Gazette opinion: Senate must expedite delayed judicial confirmations (Billings Gazette [MT,WY], 12/01/13)
"The filibuster rule change that created uproar in the Senate before Thanksgiving should provide judicial relief in Montana by Christmas. ... The immediate trigger for the dramatic rule change was Republicans’ blocking of President Barack Obama’s three nominees to the U.S. Circuit Court of Appeals in Washington, D.C. Those are just three vacancies among 91 nationwide. Fifty-one of Obama's judicial nominees are awaiting Senate confirmation. Thirty-eight of them are needed to fill judicial emergencies, including the two in Montana. Political stalemate is holding up even non-controversial nominations, such as the two Montana judgeships. ... Baucus and Sen. Jon Tester, D-Mont., were reluctant to vote for the filibuster rule change, but supported it to overcome the gridlock that is starving America's justice system of judges. With too few judges, justice is delayed. Justice delayed is justice denied.... Baucus is right. It is time for the Senate to do its job: Allow the president to fulfill his constitutional duty to appoint U.S. judges so the judicial branch can do its job."
Julie DelCour: Rule change could make government more efficient Will pettiness, partisanship go by wayside? (Tulsa World [OK] , 12/01/13)
Associate Editor column: "President Obama has one of the worst records if not the worst record of any president for getting his nominations through the process in a timely fashion.... Perhaps most damaging is the unprecedented backlog of judicial appointments.
In Tulsa, a U.S. District Court judgeship, vacated by Terrence Kern who took senior status in 2009, took three years to fill finally with the confirmation of Judge John Dowdell A vacancy on the 10th Circuit U.S. Court of Appeals, following the departure of Robert Henry in 2010, was not filled until early this year, with the confirmation of Judge Robert Bacharach.... The recent Senate rule-change came to a head because Senate Republicans had blocked three Obama nominees to the U.S. Court of Appeals for the District of Columbia ... Every community is hurt because the people's business doesn't get done courts are without judges, federal agencies are without leadership and the president is playing without a full team. The gridlock cripples one of the country's most important recruitment offices."
Your Views: Filibuster change brings democracy to the Senate (Janesville Gazette [WI], 12/01/13)
Robert Oblak: "What were the GOP senators thinking to force this change to the filibuster rule? Currently the federal judiciary is evenly balanced with 390 GOP-appointed judges and 391 Democratic-appointed judges. However, 93 vacancies will soon be filled by Obama, and he still has three years and whatever vacancies that will arise to fill. This is not a “packing of the court”; it is simply an exercise of the president’s responsibility to fill judicial vacancies."
Editorial: U.S. Senate’s limits on filibuster were overdue (Herald [Rock Hill, SC], 11/30/13)
"Since 1967, 67 cloture motions have been filed on judicial nominees. Of the total, 31 occurred during Obama’s time in office.
In most cases, the blocking of Obama’s nominees had little or nothing to do with questions about the nominees’ qualifications, as even many Republicans will concede. The tactic was merely used to obstruct the president from filling seats on the court, as he is constitutionally mandated to do, and from filling openings in a variety of commissions and government agencies. A good example is the blocking of Obama’s nominees to the three open seats on the U.S. Court of Appeals for the District of Columbia Circuit, the most important appeals court short of the Supreme Court. The court has 11 seats, but with the three vacancies, only eight are filled. Four of those judges are Democratic appointees and four are Republican appointees. Rather than disturb that political balance, Republicans in the Senate have simply blocked Obama’s nominees, saying, in effect, they would allow the president no more appointments to that court."
Filibuster abuse will lead to its end (Journal Tribune [York County, ME], 11/30/13)
Gordon L. Weil column: "The Republican Senate minority has resorted to using the filibuster threat hundreds of times to block legislation and to prevent President Obama from naming people to executive office or to the courts. Endless debate had become a tool not to promote full and thoughtful discussion, but with the open intent to introduce minority rule.... By last week, Republican senators had made it clear they would not approve any appointees to the federal appeals court in Washington, D.C., although it is authorized by law to have 11 judges, and there are only eight now on the bench. The GOP had no serious objections to the three Obama appointees. But it feared that the ideological balance on the court could shift away from conservative domination by justices appointed by Republican presidents. It wanted the court reduced to the current eight judges. The GOP was unwilling to wait until there was a Republican president and Senate to change the number of judges, assuming it would do so if it had control. While the Constitution provides that the president appoints federal judges subject to the “advice and consent” of the Senate, it does not suggest that a Senate minority should legislate by blocking presidential appointments."
Dems should not hesitate to further streamline the Senate rulebook (Washington Post, 11/29/13)
Ryan Cooper: "the blue slip rule is almost certainly already being abused–why else would the vast majority of empty appellate and district court seats be in states with at least one Republican senator? (Texas alone has seven vacancies.) I see no remotely justifiable policy reason to give senators a veto over all judgeships in their state. ... In fact, at this point there is no reason not to bust out the big red pencil on the Senate rulebook and dramatically reduce the potential for obstruction."
Senate must end tyranny by supermajority (San Francisco Chronicle [CA] , 11/29/13)
Lawrence Axil Comras: "Republicans will no longer be able to insist on a supermajority to approve certain judicial candidates. The immediate goal is to make it more possible to get judges approved. There are currently 93 vacancies in the federal judiciary alone. More than 10 percent of the entire federal judicial system is vacant."
Next stop in GOP judicial nominations obstruction: Blue slips (Daily Kos, 11/27/13)
Joan McCarter: "The blue slip is just a tradition, a tradition that Sen. Orrin Hatch (R-UT) ignored when he chaired the Judiciary Committee. When Democrats regained the majority and Sen. Patrick Leahy took over, he restored it, but he seems open to change, just as he was on the nuclear option.... This is a fight President Obama should take on, because it's both one he could win and because judicial vacancies really are a crisis. He can start with those seven vacancies in Texas."
Editorial: Filibuster vote just attempt to avoid real work (Pantagraph [Bloomington, IL], 11/27/13)
"Senate Republicans have been holding up several nominations by President Obama, not because they felt the nominees were unfit, but because they didn’t want Obama’s Democrat-leaning appointments to go through.... Republicans have been doing it to Obama, mostly because they can.... Of course, presidents select judges that reflect their political values, although it’s been proved many times that predicting the future decisions of the judiciary is chancy at best. For most of our country’s history, judicial nominations were approved by the Senate as long as the candidate met the qualifications and appears up to the task. The appointments need to be approved in order to keep the judiciary process, already plagued by delays, running smoothly. The need for operating an efficient government has given over to partisanship in the last decade. Judicial nominations are no longer routine; instead the nominations are regularly held up by the minority party for purely partisan reasons. It’s an ugly practice, which everyone living outside the Washington metro area easily recognizes."
Filibuster is Gone, But Will Blue Slips Halt 11th Circuit Nominations? (Findlaw, 11/27/13)
William Peacock, Esq.: "Will the removal of the filibuster allow thirteen Eleventh Circuit vacancies (four of which are on the circuit court of appeals itself) to be filled in a timely manner, or will the oft-forgotten Blue Slips tactic rise up in its place? ... even before the gutted filibuster announcement, blue slips were used locally, to block Jill Pryor from the appeals court bench, and Florida state court Judge William Thomas, who was in line for a district court seat. ... if blue slips are used (or abused) along party lines, the Eleventh Circuit's nomination logjam, for the four Circuit Court spots, as well as the nine district court vacancies, could continue."
What Filibuster Reform Critics Forget: the Federal Judge Shortage; A noted federal appeals courts judge tries to soft-shoe last week's filibuster reform—and ends up sounding like a partisan miffed about the restoration of a fully-populated judiciary. (Atlantic, 11/27/13)
Andrew Cohen: "Judge Wilkinson may be sad about last week's rule change but the hundreds of federal judges around the nation whose crushing workloads will be eased somewhat by the end of the judicial filibuster surely won't ... Nor did he acknowledge, or lament, that the Republican filibuster over the past four years has helped create or continue "judicial emergencies" in no fewer than 38 jurisdictions ... All that Senate minorities were deprived of last week was the ability to veto judicial nominees without giving a substantive reason for doing so. All they are banned from doing now is preventing substantive votes on judicial nominees who already have been cleared by the Senate Judiciary Committee. ... false equivalence doesn't excuse the unprecedented extent to which Senate Republicans lately employed the filibuster to keep the nation's benches empty. Nor does it explain why there are still so few black federal judges on benches in the South ... In 2000, when his Fourth Circuit itself was under a "judicial emergency," Judge Wilkinson maintained that his court had enough judges despite its vacancies. In other words, he presaged the dubious argument made recently by Sen. Charles Grassley, the Republican from Iowa, who contends despite overwhelming evidence to the contrary that the D.C. Circuit doesn't need to fill its existing vacancies because it's not busy enough. Of course it is. Worse, Judge Wilkinson took that stand even though his Fourth Circuit, encompassing a large black population in the South, had no black federal appeals court judges.... Who agreed with Judge Wilkinson at the time? Sen. Jesse Helms."
Blue-Slip Battle: The Senate Obstructionists’ Secret Weapon (New Yorker, 11/26/13)
Jeffrey Toobin: "The list of federal judicial vacancies tells an extraordinary story. For example, there are seven vacancies on the federal district courts in Texas. ... Obama’s practice has been to try to get advance clearance from Republican senators before he nominates anyone to the federal bench from their states.... But the Republicans don’t agree to any of Obama’s choices, and so the seats stay vacant, sometimes for years. ... There are three vacancies in Kentucky, three more in Georgia, and two in Alabama. And it’s not true just for the district court; Leahy has honored blue slips for circuit-court judgeships, as well. There are two vacancies each on the Fifth and Eleventh Circuits,"
Filibuster nuke fallout: Editorial cartoon (Cleveland Plain Dealer [OH] , 11/26/13)
Jeff Darcy, Northeast Ohio Media Group opinion accompanying his cartoon: "It speaks to how bad the obstruction had gotten that Harry Reid had to go nuclear to blow-up the log-jam blocking confirmations of Judges and department heads that are needed for the government to function at the basic level."
Editorial: New filibuster rules revive the Senate; Judicial appointments should not have become partisan hostages. (Minneapolis Star Tribune [MN] , 11/26/13)
"Wishing for more restraint in Republican use of the filibuster to block the confirmation of executive and judicial branch appointments wasn’t making it so. ... A former prosecutor, Klobuchar also argues forcefully that leaving judicial positions vacant for purely partisan reasons is unacceptable. “Everything from criminal cases to consumer cases get delayed,” she said this week. “The most complicated cases end up in federal court. We need every judicial position filled to handle that load.” It’s notable that the filibuster that went too far in the eyes of Senate Democrats was over three appointees to the District of Columbia Circuit of the U.S. Court of Appeals. That court is the venue for cases involving the administrative decisions of federal agencies, making it second only to the Supreme Court in influence. Its docket in coming years is likely to include cases that deal with the Environmental Protection Agency’s efforts to curb carbon emissions and various agencies’ implementation of the Dodd-Frank law governing the financial-services industry. Those cases deserve to be assigned to a court at full strength. As Klobuchar said Nov. 7 on the Senate floor, the three stalled appointees to that court are people with stellar credentials. Two of the three are women; one previously filibustered appointee to the D.C. Circuit was also female. The need for better gender balance is among several reasons why the appointees deserve confirmation. If the filibuster had not been “nuked,” it’s not clear when or even if the D.C. Circuit would be back to its full 11-judge complement. The same goes for the rest of the federal court system. Nearly 11 percent of federal judgeships are vacant, causing stress and delay that ultimately erodes the quality of the administration of justice."
Stapilus: Idaho Needs a Third Federal District Judge (Times-News [ID] , 11/25/13)
Randy Stapilus: "Representative Mike Simpson might not get a lot of attention for his proposal of last week — one that may be the most specifically useful to Idaho that any of the delegation offers this term. And a repeat from 2010, at that. But Idaho does need a third federal district judge. ... He said that, “I recently met with Idaho’s federal judges and heard directly from them about the serious impact budget cuts, sequester, and the lack of an additional judge are having on the federal courts in Idaho. While I am fully cognizant of the budget crisis facing our country, I share the judges’ concerns about delays in the administration of justice and the impact that has on the Constitutional role of the courts.”... The understaffing has led to inefficiencies and, ironically, extra costs."
Editorial, 11/25: Filibuster was out of control (Lincoln Journal Star [NE], 11/25/13)
"Maybe the new limits placed on use of the filibuster will help Congress win back some respect. It ought to restore some measure of majority rule, which would be a good thing. And, given the mess Congress has made of things, it hardly could make things any worse....it was all too easy to throw a wrench into the machinery of government. Federal judgeships sometimes stay vacant for months and years because of filibusters."
Filibuster rules fight leaves nominees dangling (Washington Post, 11/25/13)
Al Kamen column: "Traditionally, before the Senate takes a long, 18-day vacation, both parties negotiate to approve a list of noncontroversial judicial and executive branch nominees. But not this time. Republicans, furious over the Democrats’ move to eliminate the filibuster on most nominations, were in no mood to play nice.
So the Senate slithered out of town Thursday for Thanksgiving — apparently they eat a lot and need time to digest so they won’t come back until Dec.9 — and left more than 70 nominees, all of whom had been approved by Senate committees, twisting in the wind."
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.”"