Editorials and Opinion
Tom Cotton blocks judges that might be hostile to contributors at his old law firm (Daily Kos, 07/21/15)
Joan McCarter: "Freshman Sen. Tom Cotton (R-AR) has learned quickly how to maximize obstruction, ... to his latest achievement, blocking five federal judges to the Court of Federal Claims. Perhaps not at all coincidentally, that court looms large for Cotton's old law firm—which includes some of his big financial contributors—because of the kinds of cases it hears, "disputes about government contracts and tax refund suits." ... In blocking the five new appointments, who have now been waiting 15 months for a vote, Cotton said that the court's workload just didn't justify having all sixteen seats filled. The chief judge of the court, Patricia E. Campbell-Smith, disagrees. ... because "current judges face unrelenting deadlines for cases unique to that court—some of which involve national defense and national security—and the cases are complex and time-consuming.""
JEERS ... (Lewiston Tribune [ID], 07/17/15)
Opinion Editor Marty Trillhaase: "JEERS ... to U.S. Sens. Mike Crapo and Jim Risch, R-Idaho. Nine months ago, 81-year-old U.S. District Court Judge Edward Lodge announced he would be taking senior status, effective July 3.
Where's the nominee? Who knows?
When the last federal bench vacancy occurred in the 1990s, their predecessors - Larry Craig and Dirk Kempthorne - did everything by the book. They used a "vetting committee." They operated in the open. Ultimately, President Bill Clinton appointed B. Lynn Winmill.
But Crapo and Risch have resorted to stealth and vague assurances. By taking this long, Crapo and Risch have left Idaho's federal courts - and the people who rely on them - in the lurch. With only Winmill working full time, you can count on a two-year delay before getting a trial date for your civil claim.
Now it turns out the state is functioning under a "judicial emergency" declared by the Judicial Conference of the U.S. Courts."
EDITORIAL: Our View: Senators Must Act Now on Judge Nomination (Times-News [ID] , 07/17/15)
"Yes, the wheels of justice move slowly, but Idaho’s federal court system has stalled.
U.S. District Judge Edward Lodge announced in September he intended to take senior status, meaning at age 81, the judge felt it time to scale back his caseload.
Ten months later, the first step in finding his replacement hasn’t been finished. A judicial emergency was declared this week in Idaho, a state now left with just one full-time federal district judge.
What’s that mean? There are simply too many cases and not enough judges. Cases are lingering with no resolution. Justice is not being served.
This is not Lodge’s fault; he gave plenty of notice. Sens. Mike Crapo and James Risch are to blame.
Under the law, the Senators are tasked with finding Lodge’s replacement, who also must be approved by the president.
The senators have kept their process secret from the beginning, but news this spring shed some light on their intentions. Several prominent female lawyers interested in replacing Lodge came forward and said they hadn’t been interviewed by the senators. Either the senators weren’t doing their due diligence by interviewing qualified female candidates, or they were simply dragging their heels.
Either scenario is atrocious."
Guest Commentary: Colorado senators should work to swiftly protect our federal trial court (Denver Post [CO] , 07/16/15)
Timothy Garvey: "Two months ago, U.S. District Judge Robert Blackburn announced he will be taking senior status effective April 2016. This announcement creates a "future vacancy" ... A fully-staffed U.S. District Court is vital because it keeps our judicial system open and accessible for Colorado citizens and businesses that need timely resolution of disputes. Yet, Coloradans already face an overworked and understaffed U.S. District Court, which has not increased the number of judges since 1984 — despite increased workload from 30 years of population growth and additional cases arising from increased federal agencies with regional offices in Colorado. Indeed, these changes caused the Judicial Conference of the United States to recommend two additional permanent judgeships be added to the U.S. District Court for Colorado in 2013. However, Congress has not acted on that recommendation and has not authorized any additional judgeships, and so Colorado's U.S. District Court holds steady with only seven judges.
Chief Judge Marcia Krieger has described the court's caseload as being at a "tipping point" even with all current seven judgeships filled. A failure to fill Judge Blackburn's vacancy by the time he takes senior status in April 2016 will only exacerbate these issues and further delay — and thereby deny — justice to those turning to the court to resolve their disputes. Therefore, in the interest of all Coloradans, I urge Sens. Bennet and Gardner to work together to create a bipartisan selection process to timely forward names to the president and to ensure the president's nominee for our U.S. District Court gets prompt consideration, both in committee and on the floor of the Senate."
Editorial: Playing games with judges’ replacements does public an injustice (Spokesman-Review [Spokane, WA], 07/15/15)
"There’s a judicial emergency in Idaho, just as there are in 28 other U.S. Circuit and District Court jurisdictions around the country....the failure to at least announce nominees to replace U.S. District Court Judge Edward Lodge shows remarkable indifference to the pace of justice for Idahoans.
Lodge announced in September he would take senior status as of July 3. Idaho’s Republican senators, Mike Crapo and Jim Risch, said in December they were taking applications for the job. Since then, the process has gone underground.
Only questions about the indifference to women applicants – none had been interviewed – flushed out the two, who said they were considering all candidates.... B. Lynn Winmill is the only full-time judge in the U.S. District Court for Idaho ... At the end of the George W. Bush presidency, there were only 15 emergencies."
Tom Cotton continues his obstructionist ways (Arkansas Times, 07/15/15)
Max Brantley: "U.S. Sen. Tom Cotton yesterday blocked efforts to fill five vacancies on the federal Court of Claims .... Cotton wouldn't allow confirmation of a single judge, even after Coons spoke in some detail about their qualifications and the need. Glenn Sugameli who follows the federal judiciary for the Judging the Environment project, said Cotton ignored Judiciary Committee approval of all five nominees in 2014 and 2015 and letters from the chief judge of the court and Claims Bar Association presidents on the caseload. Said Sugameli, “There is no reason for the long delayed Floor votes on the five unopposed nominees and every reason to vote now after the Chief Judge and five past presidents of the Court of Federal Claims Bar Association urged prompt action to help with major caseload problems from lack of five judges on the 16 judge court. Justice delayed from lack of judges is justice denied.” ... Sugameli notes that during the Bush administration, the Senate confirmed nine judges to the Court of Federal Claims, while only three have been confirmed during the Obama administration. During two rounds of Judicial Committee hearings on this group, no Republican expressed the "concerns" Cotton used yesterday to block the vote."
Toomey Apparently Fails to Press McConnell on Timing for Restrepo Vote (People For blog, 07/14/15)
"Consistent with how Democrats in the Senate treated George W. Bush’s Third Circuit nominee from Pennsylvania in 2007, when Thomas Hardiman was confirmed just one week after his committee vote, Toomey ought to be pushing McConnell for a vote this month, before the August recess.
Toomey and McConnell are apparently trying to make Pennsylvanians think Toomey is doing that, but they have not actually stated anything of the sort.... Toomey and McConnell omit any mention of timing."
Benched! Everything’s bigger in Texas (Justice Watch, 07/09/15)
"There is no doubt the state of Texas is at the epicenter of what is a growing judicial vacancy crisis. It has the most judicial vacancies of any state in the country (nine, all without a nominee), a quarter of the nation’s judicial emergencies, and some of the longest-standing vacancies in the judiciary. ...Yet, despite this dire situation, Senator John Cornyn, R-Texas, wrote in a recent letter to the editor that he had been “working . . . to fill openings as they arise,” pointing to the confirmation of 12 Texas judges in the past six years ... confirmation totals are meaningless unless considered beside the number of vacancies that need to be filled. ... As we detail in our report on Texas, Senators Cornyn and Ted Cruz, R-Texas, have refused to screen candidates for seats they know will soon be vacant, waiting instead until the judge leaves office with no one to take on their workloads. Several judges—to no avail—have given the senators a year’s notice of their intent to retire and urged them to start seeking a replacement immediately."
With Toomey's Help, Senate Could Confirm Restrepo Quickly (People For blog, 07/09/15)
"The person best positioned to help Restrepo is McConnell’s fellow Republican, Senator Toomey. ... He can talk to McConnell, who has every reason to be responsive to members of his caucus. And while Toomey’s talking about the needs of Pennsylvanians, he can also remind McConnell how the Democratic-controlled Senate treated George W. Bush’s Third Circuit nominee from Pennsylvania in his last two years.
Like Restrepo, nominee Thomas Hardiman was a district court judge; he had been nominated to the federal bench by Bush earlier in the president’s term. Like Restrepo, Hardiman was nominated to fill a judicial emergency. And like Restrepo, Hardiman had the unanimous support of the Judiciary Committee.
And in March of 2007, then-Majority Leader Reid scheduled a confirmation vote just one week after the committee vote.
So is a confirmation vote for Restrepo this month too much to ask?"
Fill the U.S. Court of Federal Claims vacancies (The Hill, 07/09/15)
Prof. Carl Tobias: "the court has experienced vacancies in five of its judgeships for more than a year, while the well qualified, consensus nominees whom President Barack Obama first tapped for those openings in 2014 have languished awaiting confirmation. Because the Court of Federal Claims needs its full complement of judges to deliver justice and each nominee is highly qualified and uncontroversial, the Senate must expeditiously provide the nominees floor debates, if warranted, and up or down votes.... Obama first nominated all five of the candidates more than one year ago, and they received Judiciary Committee hearings nearly a year ago. The panel unanimously reported all five out of committee rather soon after the hearings. Unfortunately, the Senate accorded none of the nominees a final vote before the 114th Congress adjourned.
Therefore, the White House renominated the five candidates in early January 2015. The Judiciary Committee in turn unanimously approved the nominees without substantive discussion in February. The five nominees have since languished on the floor over four months awaiting debates and yes or no ballots. In a June 24 Congressional Record statement, Sen. Patrick Leahy (D-Vt.), the Judiciary Committee Ranking Member, urged swift votes : "We have heard no opposition to any of these nominees, yet they have been in limbo for months and months because the Republican Leader has refused to schedule a vote.""
Benched! Chuck Grassley’s three nonsense excuses for stalling judicial confirmations (Justice Watch, 07/08/15)
"Judiciary Committee Chairman Chuck Grassley lamely defended the pace of confirmations in written remarks, asserting that “there shouldn’t be any complaining about following the same standard we did in 2007.” Grassley supported his view with three well-worn talking points that do not survive even the most cursory review.... Obama’s higher confirmations are explained by the higher number of judicial vacancies he has had to fill, not by preferential treatment in the Senate. At this point in their respective presidencies, Obama has faced 47 more vacancies than did Bush, which means that, with only 33 more confirmed, Obama’s confirmations are actually falling behind.... only 13 judicial nominees have had hearings so far this year, while at this point in 2007 Democratic Chairman Patrick Leahy had convened hearings for 17 ... what Grassley refers to as “standard Senate practice” was in fact nothing more than the obstruction of a single Republican senator. At the end of 2006, Republican Senator Sam Brownback blocked a vote"
Sen. Toomey should be pushing for Judge Restrepo's confirmation (Pittsburgh Post-Gazette [PA], 07/07/15)
Letter to the Editor BY Jodi Hirsh: "It has been more than six months since President Barack Obama nominated Judge Restrepo, but his nomination has been held up in the Senate Judiciary Committee, even though both Pennsylvania senators enthusiastically support his nomination.
The person best positioned to move this nomination forward is Sen. Pat Toomey. When Judge Restrepo’s nomination was put on the agenda for a vote in late June, Sen. Toomey could have done what Republican senators from Arizona did last year when their state was facing judicial emergencies, as Pennsylvania is now.
In that case, Sens. John McCain and Jeff Flake were willing to ask their fellow Republicans not to hold up vitally important committee votes.
Unfortunately, Sen. Toomey did not persuade his colleagues to move forward; instead, he sat idly by and watched as the vote was postponed for at least another two weeks.
Either he is unwilling to go to bat for a nominee whom he has repeatedly publicly supported, or he doesn’t have enough clout with his colleagues to move the vote forward.
Either way, it’s bad news for his constituents, and worse news for democracy and justice."
EDITORIAL: Raking in donations, shoveling bad policy (Virginian-Pilot, 07/07/15)
"Nutrient pollution causes algae blooms, which cause the bay's annual dead zones, which kill everything they engulf: fish, oysters, crabs, plants. That was the damage the Chesapeake Bay Agreement was forged to prevent. ... The agreement was eventually given some enforcement powers - the EPA could theoretically take control of clean-up if progress wasn't made - but Washington refused to act. Until the Chesapeake Bay Foundation sued to force the EPA to do so. In 2010, the bay states - which now include New York, Delaware and West Virginia - came under EPA orders to cut pollution in their waterways, although the states still decided how to reach the targets."
Grassley should take action on judicial nominations (Des Moines Register [IA], 07/06/15)
Letter to the Editor by Tom Palmer: "There is a vacancy on the U.S. Third Circuit Court of Appeals, which hears appeals from federal district courts in Delaware, New Jersey and Pennsylvania. It has been more than six months since Judge Felipe Restrepo was nominated for the vacancy, but he has been held up by the Judiciary Committee. This has occurred even though both Pennsylvania senators support Judge Restrepo's nomination. The vacancy has been declared a "judicial emergency," meaning that hundreds of Americans await their day in circuit court. And they are not alone: Twenty-seven such emergencies have been declared across the country, with justice delayed for thousands of individuals and companies....Senator Grassley has a long list of other judicial nominees waiting. More stalling means that justice will be delayed or denied for thousands of Americans."
On Judicial Confirmations, 4 ≠ 21 (People For blog, 07/06/15)
"So far this year, the Senate has confirmed only four judicial nominees. By this same point in 2007, the Senate had confirmed 21 of Bush’s judicial nominees.... By this time in 2007, the Senate had confirmed 13 judges left over from 2006 who were denied a vote during the lame duck not by Democrats, but by Republican Sam Brownback of Kansas. The Senate had by this point in 2007 also confirmed an additional eight judges who had cleared the Judiciary Committee for the first time that year, a number that by itself is twice the number confirmed by the current Senate.... all but three of the lame duck confirmations [in 2014] had unanimous Republican support.... No matter how you slice it, 4 ≠ 21."
GOP blocks Obama’s judicial nominations (Hill Talk, 07/06/15)
Nick Seebruch: "Unable to defeat key pieces of the President’s agenda through the legislative branch, the Republican’s are attacking President Obama’s legacy through the judiciary by confirming the least amount of judges since 1969.... President Obama’s nominees have had the longest median wait-time of any President in recent history at 228 days from nomination to confirmation."
Editorial: Rep. Goodlatte takes aim at the Bay cleanup, again (Free Lance-Star [VA] , 07/05/15)
"The Chesapeake Bay Foundation is suing the state of Virginia for its failure to require farmers to erect fencing that would keep livestock out of the Bay’s tributaries.
Virginia’s farmers are proving themselves a cooperative bunch. They are taking seriously key best management practices, .... But the improvement gained through those efforts is lost when livestock wades into streams and relieves itself, creating a significant sewage pollution issue.
... The state agencies would do well to revisit the permit language, add the fencing requirement, seek funding to assist the operations in meeting the provision and settle the suit. Money put toward that purpose is much better spent than on litigation defense."
Judicial vacancies slow judicial system (San Antonio Express-News [TX] , 07/05/15)
Op-Ed by Hooman Hedayati: "the 5th Circuit, which has jurisdiction to hear appeals arising out of U.S. District Courts in Texas, has had two vacancies for the past 18 months .... Unfortunately, U.S. Sens. John Cornyn and Ted Cruz of Texas have opposed potential nominations of qualified district judges originally recommended for those positions by Republicans. They have also shown little interest in recommending nominees to the White House in order to fill an additional seven U.S. District Court vacancies.
The two circuit vacancies, and five of the seven District Court vacancies have been marked as a judicial emergency by the Judicial Conference of the United States, headed by Chief Justice John Roberts. The emergency designation implies that these courts’ current caseload is too much for the judges to handle. Even if these seats were to be filled tomorrow, the conference has asked Congress to add eight new judgeships to the District Courts in Texas.... Unfortunately in almost all cases, our senators have waited many months after the vacancy to start their search process."
Judicial Vacancies (American Bar Association, 07/02/15)
"Our nation is disadvantaged when our federal judiciary does not have sufficient judges to hear cases and resolve disputes in a thorough and timely fashion. ... Neither the Senate Judiciary Committee nor the Senate has acted expeditiously to confirm pending nominees. In fact, during the first three months of this Congress, the Senate failed to hold any confirmation votes, ... it appears that leadership has decided to slow-walk the process for reasons that have nothing to do with the qualifications of the nominees.... As a result, the number of vacancies and courts with judicial emergencies are increasing and the backlog of civil lawsuits keeps growing.... To further add to the strain on the federal judiciary, dozens of new judgeships are needed, according to the Administrative Office of the U.S. Courts (AO), especially in the Delaware and the border courts where caseloads are crippling. On March 19, 2015, the Judicial Conference submitted its request for 73 new judgeships and the conversion of nine temporary ones into permanent judgeships."
EDITORIAL: Court’s mercury rule hurts N.J. (Daily Record [NJ], 07/01/15)
"U.S. Supreme Court ... justices struck down U.S. Environmental Protection Agency’s standards for mercury pollution from power plants. The standards would have applied to roughly 600 plants, cutting mercury pollution up to 90 percent and preventing an estimated 11,000 deaths each year.
Those standards would have been of great benefit to New Jersey, which has worked hard to reduce mercury pollution within the state but is still burdened burdened with pollution coming in from beyond our borders.... This decision — we hope — will only be a minor and short-lived detour."
Now do you understand why the courts matter so much? (NC Policy Watch, 06/30/15)
Rob Schofield: "Conservatives have been blockading and filibustering the President’s nominees at all levels of the federal judiciary since he took office in 2009.
Part of this problem is just the increasingly divided nature of modern American politics, but another significant part is clearly attributable to an intentional, longstanding effort by powerful forces within the American conservative movement to remake the federal judiciary.... Senator Richard Burr has successfully pulled off a solo, unexplained filibuster of the President’s efforts to fill the oldest federal court vacancy in the country. ... the nine justices of the Supreme Court decide a handful of cases each year while the 900 judges who comprise the rest of the federal judiciary decide thousands.
Let’s hope the recent narrow decisions serve as a wake-up call to all progressives to become regularly engaged in helping to determine who those justices and judges are at all levels."
D.C. Circuit Caseload Rises From Spike in Agency Challenges (National Law Journal, 06/30/15)
"The caseload of the U.S. Court of Appeals for the D.C. Circuit rose sharply over the past year from new administrative challenges to environmental regulations and labor rulings, Chief Judge Merrick Garland said at the circuit’s judicial conference last week.
The increase in new cases, which Garland estimated at nearly 30 percent, comes on the heels of criticism that the circuit’s caseload statistics did not justify filling judicial vacancies. Some Senate Republicans in 2013 opposed to three nominations to the D.C. Circuit—Patricia Millett, Cornelia Pillard and Robert Wilkins—cited declines in the court’s caseload.
Between March 2014 and March 2015, the D.C. Circuit saw a more than 20 percent increase in new appeals filed, from 941 to 1,138, according to the most recent publicly available case data. The biggest jump was in new administrative cases, which nearly doubled....The appeals court has a full bench for the first time in more than 22 years, Garland said. In November 2013, the U.S. Senate invoked the so-called “nuclear option" to allow Democrats to push through President Barack Obama’s stalled D.C. Circuit nominees."
EDITORIAL: A Divided Court on Three Big Rulings; Micromanaging the E.P.A. (New York Times, 06/30/15)
"Writing for the majority, Justice Scalia rejected the agency’s argument that it considered costs at a later stage.... The problem, as Justice Elena Kagan explained in a sharp dissent, is that the E.P.A. considered the costs connected to the emissions rule “over and over and over again.”"
Robert Bork Wouldn't Have Changed History (Bloomberg News, 06/29/15)
Jonathan Bernstein column: "As a compromise candidate, Kennedy would preserve the president’s ability to influence the court far into the future, yet also reflect the Senate’s preferences. (Senate liberals and moderates wouldn't have dreamed of blockading just any Reagan nominee, as Republicans have done for some appeals-court vacancies under Obama.)"
EDITORIAL: Clean air gets scrubbed (Baltimore Sun, 06/29/15)
"The irony, of course, is that in holding up the rules which were expected to be finalized this summer, it's the Supreme Court that has cost the American people. Power plants are by far the major source of airborne mercury ... The consequences of this should be troubling to all, including the justices who ruled against the EPA — Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito and Chief Justice John Roberts."
Juan Williams: The pollution of politics (The Hill, 06/29/15)
Opinion column: "Congress has lost its ability to be pragmatic and solve the nation’s big problems.... Part of the problem is that Republicans in Congress have such a strong aversion to Obama. Their primary objective throughout his presidency has been to block his plans, from ObamaCare to immigration; infrastructure spending to judicial nominations."
Restrepo committee vote delayed (CA3blog, 06/25/15)
"As feared, this morning the Senate Judiciary Committee postponed a vote on the Third Circuit nomination of L. Felipe Restrepo, without explanation. Apparently this means no vote until after July 4 at the earliest."
A new pattern of obstruction as Chuck Grassley delays hearings for long-pending nominees (Justice Watch, 06/24/15)
Kyle Barry, Alliance for Justice: "the Judiciary Committee Chairman appears to be guaranteeing at least three consecutive weeks without a confirmation hearing....Mary Barzee Flores for the Southern District of Florida, and Julien Neals for the District of New Jersey—have already waited four months for a hearing, and both are nominated to critical “judicial emergencies” in their home states.... Grassley has held himself to “the Leahy standard in 2007,” when Senator Patrick Leahy was the committee chairman, and Democrats controlled the Senate under President George W. Bush. But at this point in 2007, Senator Leahy had convened five confirmation hearings for 17 judicial nominees, while only 13 nominees have had hearings this year. This is in addition to the enormous disparity on confirmations—four this year compared to 21 by the end of June in 2007."
Has the Senate Really Turned a Corner? (Wall Street Journal, 06/24/15)
Jim Manley column: "under Sen. McConnell, the Senate is on pace to confirm the fewest judicial nominations of any recent Congress. Republican senators are blocking efforts to confirm judges in their home state to spite the president. Where is the leadership in that?”
Judiciary committee schedules Thursday vote on Restrepo nomination (CA3blog, 06/23/15)
Matthew Stiegler: "The Senate Judiciary Committee has scheduled a committee vote on the Third Circuit nomination of L. Felipe Restrepo for this Thursday. That is less than a week before Judge Rendell takes senior status and opens a second vacancy on the court which already has been operating under a judicial emergency for over four months now. Fingers crossed."