Editorials and Opinion
Confirming federal judges during the final two years of the Obama administration: Vacancies up, nominees down (Brookings, 08/18/15)
Russell Wheeler: "The Senate began a month-long recess on August 7, having confirmed five judges in 2015 compared to 26 at this point in President Bush’s seventh year in office and 11 in President Clinton’s. Then, as now, the party that controlled the Senate hoped in 14 months to regain control of the White House and judicial nominations..... • Here is Senator Grassley’s explanation of why the Senate has only confirmed five judges so far this year: “Had we not confirmed ... 11 judicial nominees during the lame duck last year, we’d be roughly at the same pace we were for judicial confirmations this year compared to 2007.” Sixteen, though, is not “roughly” the same as 26; it’s a little more than half. More important, the proper metric for an effective confirmation process is not proportionality among congressional sessions. The proper metric is filling vacancies pursuant to Article II of the Constitution, and on that measure, the Senate is hardly at the same pace as in 2007."
Jimmy Carter's Most Important Legacy: Female Judges (The New Republic, 08/13/15)
Gwyneth Kelly: "Carter appointed 41 female judges—five times as many as all his predecessors combined.... Since his presidency, with the notable exception of Reagan, every president has surpassed Carter’s record. As of August this year President Obama has appointed a record 131 female judges, including two female Supreme Court justices .... His outlook has been borne out in countless studies that have shown the impact of gender on the legal process. A 2005 Yale study found that in sexual harassment and sex discrimination cases the gender of judges “mattered more than [their] ideology in determining outcomes.” Female judges ruled in favor of plaintiffs more often than male judges, and male judges who were on a bench alongside female judges ruled in plaintiffs’ favor more than twice as much as judges on all-male panels. Last year The New York Times reported that judges with daughters, who are exposed to the reality of women’s lived experiences, are more likely to vote in favor of women’s rights."
EDITORIAL: Well-staffed court: Casey and Toomey must push the choices forward (Pittsburgh Post-Gazette [PA], 08/10/15)
"It’s easy to dismiss the necessity of well-staffed, high-functioning courts — until you need one. But the wheels of justice turn more slowly when a judge’s chair is empty.
As of Aug. 6, 67 judicial vacancies were pending in federal courts. Look ahead to future retirements already scheduled and the system will see another 16 judges depart by next July.... One casualty of the hostile relations between Democratic President Barack Obama and the Republican-controlled Congress has been the inability — sometimes unwillingess — to approve qualified judicial nominees before they become hostages in unrelated political battles.
Pennsylvanians got a taste of that with the case of U.S. Judge Luis Restrepo. His nomination by Mr. Obama to the 3rd U.S. Circuit Court of Appeals languished for eight months until the Senate Judiciary Committee in July moved it in position for a floor vote.
Last week the president named three candidates to fill long-standing vacancies ... To get this far, the nominees have already been vetted by a selection committee set up jointly by Pennsylvania’s senators, Republican Pat Toomey and Democrat Bob Casey. Together they should keep any political shenanigans at bay and push the nomination process forward."
Editorial: Cheers and jeers (Gainesville Sun [FL], 08/07/15)
"The wheels of justice are grinding to a halt in a number of federal courts, thanks in part to Florida's junior U.S. senator.
Federal courts have 31 declared judicial emergencies, including three in Florida, due to vacancies and a backlog of cases. ... Just five of Obama's judicial nominations have been confirmed in 2015, far behind the pace of other presidents in their seventh year, according to the report. A nominee for the Southern District Court of Florida, Mary Barzee Flores, has been blocked for more than five months from even having a hearing.
The Why Courts Matter coalition estimates there have been more than 38,800 missed cases due to the backlog and about every 24 minutes a new case is added to that backlog because of vacancies."
U.S. Senate drags its feet on federal judicial nominations (Fresno Bee [CA] , 08/07/15)
POLITICAL NOTEBOOK By John Ellis: "It’s well known that Fresno’s federal judges are overworked and struggling under the weight of one of the nation’s largest caseloads.
The U.S. Senate, however, appears in no hurry to help.
Federal legislation that would approve more judges for California’s Eastern District, which includes courthouses in Fresno and Sacramento, is going nowhere. And there appears to be no hurry to approve U.S. District Judge Anthony W. Ishii’s replacement.... So far this year, the Senate has confirmed just five judges, which puts it on track for its worst confirmation year since 1969 .... U.S. District Judge Lawrence J. O’Neill is the lone Fresno district judge. Ishii has taken “senior status,” which allows him to work in retirement, but he’s reduced his caseload by half.
“In light of the incredible need for judicial resources in the Eastern District of California, I must admit that I am at a total loss to understand the delay at the Senate level for confirmation,” O’Neill said. “While it affects negatively federal judges, it ultimately affects the rights and legitimate expectations of the members of the public that we serve.”
To get an idea how bad it is in Fresno and Sacramento, the non-partisan Judicial Conference of the United States has recommended that Congress double the number of judges in the Eastern District from the current six to 12."
Sen. Cory Gardner bucks Sen. Michael Bennet — and tradition — by forming his own judicial selection committee (Colorado Independent, 08/06/15)
Kyle Harris: "Colorado’s junior Sen. Cory Gardner broke with the tradition of respecting senatorial seniority and announced that he’ll be putting together his own judicial evaluation committee to vet applicants eager to be Colorado’s next federal judge.
Senior Sen. Michael Bennet is in the process of forming his own bipartisan committee. Traditionally, that’s what senior senators do. And, traditionally, the junior senator would work with his colleague.
As for Bennet, he’s happy to consider Gardner’s second committee’s nominations.
“We will have an ongoing bipartisan process and will welcome any recommendations that they submit,” Bennet’s spokesman Adam Bozzi told The Colorado Independent.
Gardner’s office didn’t reply to our requests for an interview about why he formed the second committee rather then working with Bennet on a speedy process.... why do it without Bennet?"
Senate splits town, leaves judicial nominees hanging (Washington Post, 08/06/15)
Al Kamen column: "The Senate has confirmed only five judges so far this year, the fewest judges confirmed since 1953, when nine judges were confirmed, according to a count by the liberal Alliance for Justice.... But as the Senate left town ... it left nine other judicial nominees twisting at least until September .... Schumer, with three of his state’s nominees pending, called the GOP’s slow-walking on judicial nominations “a disgrace,” noting that, by the end of July, 2007, the Democratic-controlled Senate confirmed 25 judges compared to five this year.
Grassley countered, blaming the Democrats for “ramming” through 11 nominees in the lame duck session while they still controlled the Senate. Grassley, assuming the GOP somehow would have confirmed those nominees, said those 11 should have been counted for this year, bringing the total to 16 or “roughly at the same pace” as in 2007, and thus the Senate was “moving at a reasonable pace.
“So put that in your pipe and smoke it, ” Grassley told Schumer."
Kevin Cuneo: Paradise Baxter a popular choice (Erie Times-News [PA], 08/03/15)
"Susan Paradise Baxter's appointment to serve as a U.S. district judge for the Western District of Pennsylvania is a popular choice in Erie. Baxter and her husband, the Rev. Don Baxter, M.D., a local dermatologist and pastor of St. Mark's Episcopal Church in Millcreek, have been active in the community for years. They are longtime supporters of local theater, the Erie Philharmonic and many social organizations, and have made friends wherever they've gone. Susan Baxter, 58, has served effectively as a U.S. district magistrate judge for 20 years, and I always enjoyed seeing her enthusiasm at the ceremonies when new citizens are sworn in. Baxter, a Democrat who succeeds U.S. District Judge Sean McLaughlin, must be confirmed by the U.S. Senate, which has not been friendly to President Barack Obama's appointees. But her recommendation by Sen. Pat Toomey, a Republican, as well as Democratic Sen. Bob Casey should help."
EDITORIAL: Our Voice: Thumbs up (Tri-City Herald [WA] , 08/02/15)
"Cracking down on trafficking Thanks, in part to the backing of Microsoft co-founder Paul Allen, Washington voters will have a chance to send a strong message to those who seek to profit from the killing of certain animals threatened with extinction. ... Until we take steps like this to dry up demand, hundreds upon hundreds of elephants will be poached for their ivory and the carcasses of rare rhinos will lie rotting in the African bush so their horns can be ground into black market aphrodisiacs."
Editorial: Grassley joins race to bottom on political rhetoric (Des Moines Register [IA], 08/01/15)
"U.S. Sen. Chuck Grassley is apparently taking civility lessons from Donald Trump.
In an exchange with Democratic Sen. Chuck Schumer of New York over confirming judges, Grassley resorted to a taunt more appropriate for a schoolyard than the floor of the United States Senate.
Schumer criticized the slow pace of judicial confirmations since Republicans took control of the Senate, and he pushed for a vote on three federal district judges in New York State. Grassley defended his party’s record .... Apart from cooking the numbers, Grassley’s immature poke at a fellow senator was undignified ... We had given Grassley the benefit of doubt that he would use his gatekeeper role as chairman of the Senate Judiciary Committee to end the judicial confirmation wars. Our optimism was not warranted."
Grassley continues confirmation wars on judges (Des Moines Register [IA], 08/01/15)
Prof. Carl Tobias letter to the editor: "Sen. Chuck Grassley perpetuates the confirmation wars by engaging in payback that ignores his constitutional duty to reduce court backlogs by allowing votes on excellent, consensus nominees.
The most relevant precedent is 2007 when the Senate had a Democratic majority, who processed President George W. Bush nominees. At this point, the Democrats had confirmed 25 judges, versus five this year. Even if you count the 11 who were confirmed in the 2014 lame duck session of Congress, as Grassley argues, that still leaves nine more well qualified, consensus nominees unanimously approved by Grassley’s Judiciary Committee on the floor who deserve votes.
Aside from numbers, which can show anything, the Senate has a constitutional duty to fill vacancies, especially judicial emergencies, which have doubled on the GOP’s watch. The people who are hurt are individuals and businesses that litigate in federal courts and the judges who are overwhelmed by huge caseloads: Justice delayed is justice denied."
EDITORIAL: THUMBS DOWN: (Idaho State Journal, 07/31/15)
"THUMBS DOWN: To the foot-dragging of Republican Sens. Mike Crapo and Jim Risch on appointment of judicial nominees to fill a vacancy resulting from the retirement of U.S. District Judge Edward Lodge. No hurry, we guess."
Confirm Judge Restrepo (Pittsburgh Tribune-Review [PA] , 07/31/15)
Prof. Carl Tobias: "Today, as in 2007, a Pennsylvania federal district court judge's unopposed nomination to the Third Circuit requires a final vote in a Senate the president's party does not control. On March 15, 2007, a Democrat Senate confirmed President George W. Bush's nomination of Pittsburgh District Judge Thomas Hardiman one week after his Judiciary Committee approval.
This precedent is one reason Senate Majority Leader Mitch McConnell, R-Ky., must schedule an immediate vote on Judge Luis Felipe Restrepo's nomination, which the committee approved on July 9. Restrepo would fill one of 28 vacancies the courts have declared judicial emergencies.... As Senate Minority Leader Harry Reid, D-Nev., said on July 7, if Toomey simply asked “to confirm Judge Restrepo immediately, (I'm confident) we could confirm Judge Restrepo to the Third Circuit next week.”
Undermining Our Third Branch and Delaying Justice (Huffington Post, 07/31/15)
Sen. Patrick Leahy, Ranking Member, Senate Judiciary Committee: "Since the beginning of the year, the number of vacancies deemed "judicial emergencies" by the nonpartisan Administrative Office of the U.S. Courts has more than doubled....At this same point in President Bush's second term, after the Democrats regained control of the Senate and I became chairman of the Judiciary Committee, we confirmed 25 judges. That is five times as many judges confirmed under a Democratic majority with a Republican president than today's Senate Republican majority with a Democratic president.
The American people should demand that the Senate act. Currently, there are 14 judicial nominees pending on the Senate floor and simply waiting for an up-or-down vote. ... Judge Restrepo also stands to make history. If confirmed, he will be the first Hispanic judge from Pennsylvania to ever serve on the Third Circuit and only the second Hispanic judge to serve on that court. This is hardly a controversial nominee, and yet the Republican majority refuses to schedule a confirmation vote for Judge Restrepo.
There are also several qualified nominees being blocked from their appointment to the U.S. Court of Federal Claims, a court commonly referred to as the "People's Court" because it allows Americans to seek prompt justice against their government. Right now there are eight active judges on the CFC appointed by President Bush and only three active judges appointed by President Obama. The five current nominees waiting for a confirmation vote are, like Judge Restrepo, highly qualified and entirely uncontroversial. They were all nominated more than a year ago, and were approved unanimously by the Judiciary Committee twice .... During the last two years of the Bush administration, Democrats confirmed 68 judicial nominees. So far, Republicans have confirmed five."
Chuck Grassley Blocks Judicial Nominees, Then Says GOP Is Doing A Great Job Confirming Them: "Put that in your pipe and smoke it." (Huffington Post, 07/30/15)
Jennifer Bendery: "The Senate has done an abysmal job of confirming federal judges this year.
Only five of President Barack Obama's judicial nominees have been confirmed since Republicans took control of the chamber in January. By contrast, when Democrats ran the Senate during President George W. Bush's seventh year in office, they had confirmed 25 of his judicial picks by this point in the year.
But Sen. Chuck Grassley (R-Iowa) said Thursday that he thinks his party is doing a great job with judicial confirmations -- moments after he blocked a Democratic effort to take up a batch of nominees for votes.
Grassley, who chairs the Judiciary Committee, rejected a request on the Senate floor by Sen. Charles Schumer (D-N.Y.) to vote on three district court nominees from his state. None are controversial; all three sailed through the Judiciary Committee last month on voice votes. ... Grassley gets points for sass, but his argument doesn't add up."
N.J. shortchanged by Exxon Mobil wetlands deal | Editorial (The Times of Trenton [NJ] , 07/27/15)
"State Sen. Raymond Lesniak, D-Union County, was one of the first state lawmakers to express outrage when news broke in March that New Jersey had agreed to accept $225 million from the Exxon Mobil Corporation to settle a decade-long case.
The state had originally sought $8.9 billion in compensation for environmental damage done to more than 1,500 of wetlands, marshes, meadows and waters in the Meadowlands.... Now a state Superior Court has turned down attempts by Lesniak and several environmental groups to intervene in the settlement. Judge Michael Hogan ruled that the activists' attempts to become parties to the suit would "unduly delay" the proceedings.
Despite the setback, the settlement's opponents have pledged to continue to keep up the good fight.
From Day One, Lesniak and Sierra Club Director Jeff Tittel have been wary of the deal – and with good cause.... It's hard not to feel that New Jersey residents are being sold down the river by all this. The Garden State deserves to be compensated for the loss of valuable public resources, not forced into a sweetheart deal of Chris Christie's making."
HOW ONE SENATOR FROM ARKANSAS IS OBSTRUCTING “THE PEOPLE’S COURT” (Text & History, 07/27/15)
By Judith E. Schaeffer: "Senator Tom Cotton (R), the junior Senator from Arkansas, is obstructing the proper functioning of the United States Court of Federal Claims (“CFC”), holding up consideration of President Obama’s nominees to fill five judicial vacancies on a court that is supposed to have 16 active judges. According to Senator Cotton, the CFC does not need those five judges, a claim disputed by the Chief Judge of that very court, who is certainly in a better position to know. ... All of the nominees were approved in February without opposition by the Senate Judiciary Committee, and sent on to the Senate floor for confirmation votes. Nonetheless, and despite the fact that nearly one-third of the judicial seats on the CFC are vacant, not one of these nominees has received a yes or no confirmation vote. ... Like the D.C. Circuit, the Court of Federal Claims is vitally important to those who care about protecting the environment and preserving environmental safeguards. The CFC has exclusive jurisdiction over most “takings” claims against environmental and other protections, .... conservatives have worked hard to put young, ideological nominees on the court, like Victor Wolski, who told the National Journal in 1999 that “every single job I've taken since college has been ideologically oriented, trying to further my principles,” which he described as a “libertarian” belief in “property rights” and “limited government.” It’s no wonder that a conservative Senator is now trying to preserve the status quo on that court."
Juan Williams: The GOP's judicial logjam (The Hill, 07/27/15)
"the Senate’s Republican majority is already on vacation from the work of confirming judges.... the Senate’s Republican majority is already on vacation from the work of confirming judges."
EDITORIAL: Give horseshoe crabs a break -- before they're gone (Newsday [NY], 07/24/15)
"The board has asked the state to ban harvesting the crabs at town beaches and in Setauket Harbor, to address concerns about overfishing. Given insufficient information about their habitat and whether the population is declining or stable, it's a reasonable request. In environmental matters, erring on the side of caution is almost always a good idea.
Beyond the wisdom of preserving species whenever we can, horseshoe crabs are important symbolically and in reality."
“A deficit in our courts”: Senator Sessions and the lack of judicial professional diversity (Justice Watch, 07/24/15)
KYLE C. BARRY: "our federal courts are staffed largely with judges who, in their legal careers before taking the bench, represented only the most powerful in American society, either defending massive corporations or wielding the enormous power of the state against criminal defendants. ... D.C. Circuit Judge Nina Pillard noted how “[t]here’s a sense, somehow, in the process of finding judges or candidates, that being in a large corporate law firm is neutral and being an advocate for people who have been subject to discrimination or retaliation or repression of their speech or their religious beliefs is not neutral, and . . . I would question that.”
This skewed sense of what’s “neutral” emerged during Senator Sessions’ questioning of Paula Xinis. ... all judges, regardless of background, are shaped by the perspectives and experiences acquired over many years in the law. Fair and equal courts require a diversity of these perspectives, not any one in particular"
ISSUE | FEDERAL COURTS: Judicial picks are democracy's building blocks (Philadelphia Inquirer [PA], 07/23/15)
Eleanor Levie letter to the editor: "As Inquirer reporter Jonathan Tamari noted, shaping the federal courts is "one of the more quiet but significant ways a president can influence public law for years to come" ... Anyone who pays attention recognizes that the judicial nominating process is being regularly and shamelessly used for political maneuvering and all-out obstructionism. This onslaught denies President Obama his rightful appointments to the bench, but it also denies all Americans their rightful day in court."
Tom Cotton: There he goes again, playing loose with the facts (Arkansas Times, 07/23/15)
Max Brantley: "I've been noting Cotton's obstruction of confirmation to five vacancies on the federal court of claims, obstruction that seems to play into the interests of a former employer and campaign contributor.
Cotton has claimed data shows the court has enough judges. Now comes CQ Roll Call with a lawyer disputing Cotton's information. Lewis Weiner, former leader of the court of claims bar association, says Cotton is using the wrong statistics.... Cotton exercised a single senator's power to block unanimous consent to the nominations, though they have twice been approved by the Judiciary Committee, once when led by Republicans."
Harry Reid Teaches GOP Basic Math and Civics (People For blog, 07/22/15)
"He pointed out the stark contrast with how the Democratic-controlled Senate processed judicial nominations in George W. Bush’s last two years ... as much as Republicans try to obscure it, the fact is that 25 ≠ 5 [confirmations] ... Reid also slammed Arkansas Senator Tom Cotton for blocking a confirmation vote last week for five nominees to the Court of Federal Claims. These are nominees who were approved unanimously by the Judiciary Committee last year and again this year to a court whose chief judge has urged the Senate to fill its vacancies so the court can handle its caseload. Nevertheless, Cotton blocked the Senate from voting on the nominees, saying that the judges on the court are willing to carry the caseload themselves without new judges. (Reid also mentioned yesterday’s report from CQ on how Cotton’s action seems to line up with the financial interests of a law firm he used to work for whose employees gave generously to his campaign.)"
CQ follows the money on Tom Cotton's blockade of federal judges (Arkansas Times, 07/21/15)
Arkansas Blog By Max Brantley: "Todd Ruger of CQ Roll Call follows up on Sen. Tom Cotton's solo blockade of five nominees to vacant seats on the federal court of claims — an obscure court that is nonetheless very important to business for deciding federal contract disputes and tax claims.
Ruger notes that Cotton's action dovetails with interests of a former conservative law firm for which he worked and which contributed to his political campaigns.... Maybe a dip in caseload (judges say cases are more complex) and taxpayers' savings aren't the only reasons Cotton objected to unanimous consent on filling vacancies on the court. Maybe he likes the cooking of the current lineup of chefs. Home cooking....None of Cotton's concerns were raised in four previous Senate votes by the Judiciary Committee to confirm the nominees.... Cotton's roadblock is preventing the confirmation of Armando Omar Bonilla, who'd be the first Hispanic to serve on the court."
Sen. Tom Cotton blocking Obama federal court appointees hostile to his old pro-business law firm (Raw Story, 07/21/15)
TOM BOGGIONI: "Despite pleas from the chief judge of the Court of Federal Claims to fill five vacancies on the court that oversees claims against the government, Arkansas Sen. Tom Cotton (R) is blocking confirmation votes for five Obama nominees, ensuring the court remains solidly pro-business.... spite pleas from the chief judge of the Court of Federal Claims to fill five vacancies on the court that oversees claims against the government, Arkansas Sen. Tom Cotton (R) is blocking confirmation votes for five Obama nominees, ensuring the court remains solidly pro-business."
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."