Editorials and Opinion
Under Trump, the Federal Courts Will Be Up For Grabs (New York Times, 12/08/16)
Linda Greenhouse column: the Supreme Court nomination, crucial as it is, is the tip of a very big iceberg. That high-profile nomination will mark only the beginning of the Trump administration’s effort to gain control of a federal judiciary that has gradually, almost imperceptibly slipped into Democratic hands during the Obama years.... the geographical distribution of Obama appointees is far from uniform, because of the power of individual senators to block nominations to judgeships in their states. Under the Senate’s “blue slip” tradition, a state’s two senators must both indicate in writing their acceptance of a nomination before the Judiciary Committee will even schedule a hearing. ... Russell Wheeler of Brookings calculated how many judges now serving on the circuit courts would be eligible for senior status by 2020. The total was 98 of the 179 judgeships on those courts. Of the 98, 48 are Democratic appointees. “If Trump replaced all 48 eligible Democratic appointees, every court of appeals would become a Republican-appointee majority court,” Mr. Wheeler wrote. He added “that’s not going to happen” — presumably because many of those newly eligible judges would choose to remain in active service for years to come. On the federal districts courts, 216 judges are currently eligible for senior status or will become eligible by mid-2020. Most of those, 61 percent, are Republican appointees;"
Editorial: New administration should leave pot decisions alone (Daily Astorian [OR], 12/08/16)
"The election of Donald Trump to the presidency and his appointment of marijuana foe U.S. Sen. Jeff Sessions, R-Ala., to be attorney general turns up the heat under these issues.
This Monday, Politico.com reported “With little more than the stroke of his own pen, the new attorney general will be able to arrest growers, retailers and users, defying the will of more than half the nation’s voters. ... Aggressive enforcement could cause chaos in a $6.7 billion industry that is already attracting major investment from Wall Street hedge funds and expected to hit $21.8 billion by 2020.”... Many of us were dubious about the wisdom of legalizing another intoxicating substance in a society already plagued with addiction. But this decision has been made, has not had dire consequences and should be left alone."
Tobias: Senate should confirm Judge Lucy Koh before adjourning (San Jose Mercury News [CA], 12/08/16)
Carl Tobias: In February, President Barack Obama nominated Judge Lucy Haeran Koh for an emergency Ninth Circuit vacancy, praising her “unflagging integrity and evenhandedness.”
Since 2010, the jurist has ably resolved many critical disputes in the Northern District of California. However, 2016 is a presidential election year in which confirmations are delayed. Because Koh is an exceptional, mainstream nominee and the court needs its full complement, she warrants appointment before this Senate session ends.... This year, Obama has proffered seven highly qualified, mainstream circuit nominees, but none received a hearing until May 18 and none has realized appointment. That means the bench has 13 circuit, and 38 emergency, vacancies. Slow confirmations have adverse impacts, depriving courts of necessary resources and many litigants of justice.
Senate Still Has Time to #DoYourJob on Judges (National Women's Law Center blog, 12/08/16)
Amy K. Matsui: There are 25 judicial nominees, all of whom were voted out of the Senate Judiciary Committee with bipartisan support, who are waiting for a confirmation vote. If Senate leadership agreed, the Senate could vote on their nominations as a group in a matter of minutes. If the Senate fails to act before the end of the year, all of these nominations will go back to the drawing board – and millions of people in the jurisdictions where these nominees would serve will continue to wait for a fully functioning judiciary.
Senate Republicans Haven’t Confirmed A Single Judicial Nominee in More Than Five Months: At the expense of the American people, they’re leaving vacancies open for President-elect Trump to fill. (Medium, 12/08/16)
The Leadership Conference on Civil and Human Rights: There are 25 nominees waiting for a vote right now, and they’ve all been fully vetted, approved by their home-state senators, and voted out of the Senate Judiciary Committee with bipartisan support — all but two unanimously. They could all be confirmed in a matter of minutes. And if Senate Majority Leader Mitch McConnell doesn’t hold votes before adjourning for the year, the process will have to start all over again when President-elect Donald Trump takes office next year — all at the expense of the American people.
Since Republicans took control of the Senate in January of last year, judicial emergencies have more than tripled from 12 to 38. Confirming the 25 nominees pending on the floor would fill nine of those emergency vacancies, and it would also add a level of diversity to the federal judiciary. More than half of the nominees (14) are women, and many would make history if confirmed. Jennifer Puhl, nominated to the 8th Circuit, would be the first woman ever in North Dakota on the federal bench and would fill one of those emergencies. ... After the 2008 election, none of George W. Bush’s nominees were left stranded on the Senate floor. In fact, a Democratic Senate confirmed 68 of Bush’s lower-court nominees in the final two years of his administration. Today, Republicans shouldn’t be rewarded for obstruction, or for their postponement of justice for many Americans. Before adjourning for the holidays, they should give the nation a gift — a slightly better staffed federal bench, with fewer judicial emergencies — by holding votes immediately.
Pass judicial nominees (Butler Eagle [PA], 12/08/16)
John Neurohr, Co-chair, Why Courts Matter-Pa., Letter to the Editor: As the U.S. Senate continues the lame-duck session, Senate leadership should schedule immediate confirmation votes on the 25 qualified judicial nominees pending on the Senate floor. Among these qualified nominees are Pennsylvania’s own Judges Susan Baxter and Marilyn Horan, who were nominated to fill district court seats that have been vacant more than three years.
Like Baxter and Horan, each of these nominees has been vetted and approved by their home-state senators and has earned the bipartisan support of the Senate Judiciary Committee. Millions of dollars have been spent vetting these nominees. Sen. Pat Toomey should now work with Senate leadership to schedule up-or-down votes on the pending nominees before the end of the 114th Congress.
It isn’t just Pennsylvania. More than one tenth of federal judgeships are vacant nationally, meaning that cases go unheard, issues unresolved and American people and businesses are left without the justice they deserve. These vacancies will remain open for far, far longer if other nominees are selected to fill them.
Confirm Judge Koh for the Ninth Circuit (Washington and Lee Law Review, 12/08/16)
Carl Tobias: On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. ... Judge Koh is an exceptional, consensus nominee—and the Ninth Circuit must have its entire judicial complement to resolve promptly, inexpensively, and equitably ... Republican senators, however, did not cooperate, particularly after they had captured an upper chamber majority in the 114th Congress, a situation that this presidential election year significantly aggravates. The last section, therefore, proffers recommendations for Judge Koh’s approval.
Trump’s attorney general pick could have a huge impact on all of Colorado [Editorial] (Durango Herald [CO], 12/08/16)
"n November, eight more states voted to legalize medical or recreational marijuana. In all, 29 states have approved the medicinal use of marijuana and only six have done nothing to ease the prohibition of pot. Legal marijuana is a more than $1 billion industry in Colorado alone. All that could be undone by one simple fact: President-elect Donald Trump has nominated Sen. Jeff Sessions, R-Ala., to be his attorney general"
Tobias: Confirm Schott for 7th Circuit Court: Schott is an experienced, moderate nominee, and the court needs every jurist. The Senate must confirm him before it adjourns. (Milwaukee Journal Sentinel [WI], 12/08/16)
Carl Tobias: Schott is particularly qualified to fill a 7th Circuit Wisconsin vacancy, which has remained open for more than six years, denying the state full representation on the appeals court.... During Obama’s tenure, Republicans cooperated very little in the confirmation process. This was exacerbated once the GOP captured a Senate majority. The upper chamber approved only one circuit jurist all last year and one in 2016. That contrasts with the 10 appellate judges the Democratic majority helped appoint in 2007-’08 — the comparable juncture of George W. Bush’s presidency.
This year, Obama has proffered seven highly qualified, mainstream circuit nominees, but none has been confirmed. That means there are 13 circuit, and 38 emergency, vacancies. Critical is another 7th Circuit opening in Indiana for which Obama nominated Myra Selby. Because Sen. Dan Coats (R-Ind.) did not return a “blue slip,” the Senate will not consider Selby, which makes Schott’s confirmation even more important....Schott is an experienced, moderate nominee, and the court needs every jurist. The Senate must confirm him before it adjourns.
Editorial, 12/.8: DACA youth are an asset to country (Lincoln Journal Star [NE], 12/08/16)
By the Journal Star editorial board: DACA students are precisely the type of immigrant who should have preference under a rational immigration policy.... But some of the people who are advising Trump, and Sen. Jeff Sessions, who he has selected to be his attorney general, are adamant opponents of the DACA program that President Barack Obama put into effect by executive order four years ago. And Trump said repeatedly that one of the first things he will do when he takes office will be to rescind Obama’s executive orders.
That could put the DACA students at special risk, since they turned over information on their identities to federal officials in order to participate in the program.
Justice Demands We Stop Jeff Sessions: Sessions can't be trusted to be America's top law enforcement official. (U.S. News & World Report, 12/07/16)
Bill Piper, Drug Policy Alliance: Sessions' record shows he's likely to escalate the war on drugs by undermining civil rights, stifling state-level marijuana reforms that have drastically reduced arrests in communities of color and rolling back much of the progress in policing and criminal justice reform made by the Obama administration.... When it comes to drug policy reform, Senator Sessions has nearly single-handedly blocked bipartisan sentencing reform and has been unduly critical of the Justice Department's use of consent decrees that force local police departments to address police brutality, racial profiling and other civil rights issues. Moreover, he supports civil asset forfeiture, the process by which police can take people's money and property and keep it for themselves without having to convict anyone of a crime. He opposes granting formerly incarcerated individuals the right to vote. (Felony disenfranchisement laws have deprived millions of the right to vote, including 30 percent of black men in the Deep South.)
Sessions recently said that "good people don't smoke marijuana" and has attacked the Obama administration for respecting state marijuana laws.
Maine Voices: Attorney general nominee failed to grasp author’s point on Supreme Court confirmations; Sen. Jefferson Sessions' misinterpretation of the premise in a 2002 speech casts doubt on his ability to serve as attorney general. (Portland Press Herald [ME] , 12/07/16)
Opinion by JOHN MASSARO: Years ago, a colleague alerted me that conservative Republican Sen. Jefferson Beauregard “Jeff” Sessions of Alabama – the man now nominated by President-elect Donald Trump to be the next attorney general – had cited me in a May 9, 2002, Senate speech.
I soon learned that Sessions had, indeed, referred to my 1990 book, “Supremely Political: The Role of Ideology and Presidential Management in Unsuccessful Supreme Court Nominations.”... I do, however, protest his manipulative use of my book to support his argument.
In “Supremely Political,” after examining all Supreme Court nominations made through 1990, I clearly conclude just the opposite of what Sessions has alleged. ... I can only conclude that his palpable and likely self-serving misrepresentation of my work occurred for one of several reasons.
He never really read “Supremely Political.” He read it but erred seriously in understanding what I was saying. He read it and understood its conclusions but, nonetheless, decided to cherry-pick a small part that supposedly supported his preconceived position and conveniently misinterpreted or ignored the rest to further his own political agenda.
If any one of these is correct, he has disqualified himself as a nominee for attorney general because he cannot effectively read, understand and present the essence of a straightforward political argument.
LETTERS: Two OK judges should be confirmed (Stillwater News Press [OK], 12/07/16)
Carl Tobias: “Confirm two OK judges now (News Press editorial, Nov. 26) correctly states that Suzanne Mitchell and Scott Palk are well qualified, mainstream nominees for the District of Oklahoma who enjoy strong support from both Oklahoma GOP senators and who have been waiting months for a Senate confirmation vote because of Republican obstruction. Thus, the Oklahoma lawmakers must prevail on the leadership to provide Mitchell and Palk floor debates and votes swiftly after the lame duck session resumes this week and the Senate should confirm them before it adjourns.
Carl Tobias: Stop delaying on judicial nominee (Gainesville Sun [FL], 12/07/16)
"On April 28, President Barack Obama nominated Philip Lammens, who has served as a U.S. magistrate judge since 2012 and as an assistant U.S. attorney from 2008 to 2012, for a vacancy on the Northern District of Florida.
Lammens is a well-qualified, mainstream nominee, who has the powerful support of U.S. Sens. Bill Nelson (D) and Marco Rubio (R) of Florida. Nonetheless, he has languished since April, mainly because Republican leaders did not grant him a Senate Judiciary Committee hearing, panel approval or a final debate and vote.
Because Lammens is an experienced, consensus nominee and the Northern District of Florida needs all of its vacancies filled, the Senate must promptly afford the nominee's hearing and committee ballot and his confirmation debate and vote.
The district now has two vacancies in four active judgeships."
Garland deserved hearing for high court [Editorial] (Tampa Bay Times [FL], 12/07/16)
"Granted, a president must nominate justices the Senate can reasonably be asked to confirm. He can't ask a Senate dominated by the other party to confirm someone whose judicial philosophy could appeal only to someone who shares the president's politics. He must, when facing such a Senate, choose someone toward the middle.
Obama did that. He did his job. The Senate did not do its job. Its refusal to confirm Judge Garland was not based on any flaw in the nominee's character, any deficit in his abilities or even any disagreement with his jurisprudence.
But this refusal of the U.S. Senate to do its duty cost a good man a fair hearing. More important, it also cost the nation a potentially fine justice — one more faithful to the law than one of the political parties or ideology."
Congress should fill judge vacancies during lame duck session (Baltimore Sun, 12/07/16)
Carl Tobias: The Senate has not approved a single federal judge since July 6, even though the bench currently experiences 96 circuit and district court vacancies (38 are "judicial emergencies"), and President Barack Obama has nominated 51 well qualified, mainstream candidates for the openings, 21 of whom the Judiciary Committee has approved without dissent. If the Senate confirms no one else, there will be more than 100 vacancies in 842 judgeships (13 percent) by January 20. Although Donald Trump won the presidency and the GOP retained its Senate majority, Republican and Democratic senators must collaborate to fill numerous vacancies before the members adjourn because the openings undermine justice.
Confirm Gary Richard Brown for the Eastern District of New York (The Hill, 12/07/16)
Carl Tobias: On July 30, 2015, President Barack Obama nominated Gary Richard Brown, who has been a U.S. Magistrate Judge in the Eastern District of New York since 2011, for a vacancy on that court. He is a well qualified, mainstream nominee, who enjoys the powerful support of New York Democratic Sens. Chuck Schumer and Kirsten Gillibrand. The Senate Judiciary Committee approved Brown on Nov. 5, 2015 without dissent. However, the nominee has languished on the floor ever since, primarily due to GOP leaders’ refusal to allow his confirmation debate and vote. Because Brown is an experienced, moderate nominee and the Eastern District of New York requires this vacancy filled, the Senate must swiftly conduct his final debate and vote.
Federal courts: Pawn in a political game (The Hill, 12/06/16)
Nancy K. Kaufman: On Oct. 29, 2015, the Senate Judiciary Committee sent Edward Stanton III’s nomination to the Senate Floor for a confirmation vote. Five months earlier, President Obama nominated Stanton to be a judge on the federal district court in Tennessee, after which the Committee held a hearing on Stanton’s nomination and determined that he was, in fact, qualified to be a judge: the current U.S. Attorney for the Western District of Tennessee, he is also a former in-house corporate counsel, private practitioner, and city attorney.
Despite these qualifications and the consent of a thorough and bi-partisan committee, Stanton’s nomination has been languishing on the Senate floor, with no vote scheduled, for over thirteen months. Why? There is no legitimate reason. Senate Majority Leader Mitch McConnell of Kentucky has blocked all judicial confirmation votes for over a year — including those for nominees without any opposition whatsoever —a shameful effort to politicize our entire federal judicial system.... In addition to holding a hearing on Judge Garland, Senate leadership must schedule immediate confirmation votes on the 25 nominees that have proven to be qualified; the hard work has been done, and every senator must be given the opportunity to vote yes or no.
Congress must make sure new AG leaves legal marijuana alone [Editorial] (Chinook Observer [WA], 12/06/16)
"Chinook Observer wondered two years ago what the 2016 presidential election would mean for state legalization of marijuana:... The election of Donald Trump to the presidency and his appointment of marijuana foe U.S. Sen. Jeff Sessions, R-Alabama, to be attorney general turns up the heat under these issues.... Congress, ... must aggressively intervene to keep the nation from again wasting its time, money and credibility on a lost war against marijuana.
Many of us were dubious about the wisdom of legalizing another intoxicating substance in a society already plagued with addiction. But this decision has been made, has not had dire consequences, and should be left alone."
Environmental Community Takes A Stand Against Hate (Defenders of Wildlife Blog, 12/05/16)
"Just as Defenders of Wildlife will always ensure wildlife has a voice – so too must we speak up in solidarity for civil rights, social justice and an environment of inclusivity. I am proud to list Defenders of Wildlife as one of 26 organizations that signed this letter to President-Elect Trump on behalf of the environmental community, and all of the people – and wildlife – who are a part of it. Thank you for standing with us. -Jamie Rappaport Clark, President and CEO of Defenders of Wildlife [letter concludes "we demand that all his nominees and appointees honor fundamental civil rights and embody civility befitting the offices for which they have been selected. Therefore, we call on the President-elect to rescind the appointment of Steven Bannon as Chief Strategic Advisor and withdraw the nomination of Senator Jeff Sessions for Attorney General to signify his move to represent all equally and protect the rights of all people."]
Democrats Have Questions. Elizabeth Warren Has Answers. (Bloomberg News, 12/05/16)
Francis Wilkinson column: Democrats have two set arenas in which to highlight, and constrain, the GOP agenda. The first is Senate hearings to confirm Trump cabinet appointees, from whom they must secure commitments to democratic norms and the rule of law. Nominees should also be required to state whether the world is round or flat. For example, Attorney General nominee Jeff Sessions should state, for the record, whether the FBI's statistics or Trump's distortions about the crime rate are accurate. The hearings are an opportunity to bolster facts and undermine propaganda.
The Senate’s shame: Merrick Garland deserved a hearing for Supreme Court [Editorial] (Pittsburgh Post-Gazette [PA], 12/05/16)
By the Editorial Board: this refusal of the U.S. Senate to do its duty cost a good man a fair hearing. More important, it also cost the nation a potentially fine justice — one more faithful to the law than one of the political parties or a particular judicial ideology.
As a result of this abdication of responsibility, it will be harder to get justices like that in the future.
Indeed, the Senate has established a terrible precedent that makes it less likely that any president will be able to get a Senate controlled by the other party to confirm his Supreme Court nominees, however wise and well-qualified.
This was a study in Washington politics at its worst — political and constitutional malpractice — and it will have a lasting consequence.
Our View: Like limited government? Then don't kill the filibuster: Editorial: Arizona Sens. Jeff Flake and John McCain understand that government was never supposed to be a wrecking ball. (Arizona Republic, 12/05/16)
"Arizona’s Republican Sens. John McCain and Jeff Flake demonstrated a keen understanding of the need to restrain the majority from becoming a runaway train when they voiced support for maintaining the Senate’s filibuster rule. In urging fellow Republicans not to change the rule that essentially requires 60 votes to move legislation or -- perhaps most importantly -- confirm a Supreme Court justice -- these two Arizonans showed their enduring commitment to conservative ideals.
Our nation’s founders understood the need for restraint in governing.... When one party fully dominates two branches of government, the need for careful reflection is more pronounced.
Donald Trump’s tempestuous nature makes it especially important for Congress to take its time and listen to opposing views before acting.
The filibuster can help that happen.... McCain signaled that he might reconsider his position in favor of keeping the filibuster if Democrats are particularly uncooperative.
Given the refusal of Senate Republicans to even hold hearings on President Obama’s nomination of Merrick Garland to replace Antonin Scalia on the Supreme Court, McCain and other Senate Republicans have little reason to expect cooperation from Democrats."
U.S. Senate should quickly fill judicial vacancies in Northern District of Texas (Fort Worth Star-Telegram [TX], 12/05/16)
Carl Tobias: On March 5, President Barack Obama nominated Judge Scott Frost, James Wesley Hendrix and Judge Irma Carrillo Ramirez for judicial vacancies in the Northern District of Texas, which includes 100 counties from the Panhandle to Dallas and Fort Worth.... All three are highly qualified, mainstream nominees who enjoy the strong support of Texas Republican Sens. John Cornyn and Ted Cruz.
The Senate Judiciary Committee convened a Sept. 7 hearing for the nominees. Still, the nominations have languished since then, primarily because GOP leaders refused to grant them a panel vote or a final debate and ballot.
Because both judges and Hendrix are experienced, moderate nominees and the Northern District of Texas requires all of its vacancies filled, the panel must swiftly approve them and the Senate must accord them confirmation debates and votes.
The district presently has four openings in 12 active judgeships.
In our opinion: The GOP should think twice before exercising the 'Nuclear Option' for Supreme Court nominees [Editorial] (Deseret News [UT] , 12/05/16)
"Republicans in the Senate should transcend partisanship and bring back the Senate filibuster rule with regard to presidential nominees and non-Supreme Court judicial appointments....While the 2013 change undoubtedly made things more efficient, it eliminated an important minority check that helps guard against “bad” decision-making made by the majority.... Unfortunately, the Republicans who railed against the rule change three years ago are more interested in payback than restoring the procedure they were trying to protect at the time. ... Republicans are deluding themselves if they believe their current majority status is a permanent condition. ... they should at least resist the temptation to extend the “nuclear option” to include Supreme Court nominees, which is something they are actively considering. If they make this mistake, history suggests they can eventually expect to receive a taste of their own medicine."
Barksdale has waited long enough to be confirmed judge (Orlando Sentinel [FL] , 12/05/16)
Carl Tobias, My Word columnist: o April 28, President Barack Obama nominated Judge Patricia Barksdale, who has served as a magistrate judge since 2013 and as an assistant U.S. attorney from 2005 to 2013, for a vacancy on the Middle District of Florida. Barksdale is a well-qualified, mainstream nominee who enjoys the powerful support of Florida Sens. Bill Nelson, a Democrat, and Marco Rubio, a Republican.
Nonetheless, she has languished since then, mostly because GOP leaders refused to grant her a Senate Judiciary Committee hearing, a panel vote or a final debate and ballot. Because Barksdale is an experienced, moderate nominee and the Middle District of Florida needs all of its vacancies filled, the Senate must swiftly conduct the nominee's hearing and committee vote and her confirmation debate and ballot.
Burning questions about Trump’s Cabinet [Editorial] (Newsday [NY], 12/04/16)
By The Editorial Board: Attorney General designate Jeff Sessions, a U.S. senator from Alabama, was an early Trump surrogate, but it’s unclear why. He’s been a culture warrior for decades whose policies are likely to draw the most opposition from Democrats. At what point will Trump tire of the controversies and divisiveness that result?
No filibuster, but AG nominee Sessions still could be derailed [Editorial] (Journal Inquirer [CT], 12/03/16)
"Sessions, who has, to say the least, traces of bigotry in his past, is President-elect Donald Trump’s nominee for attorney general.
However Republicans joined with Democrats in passing President Lyndon Johnson’s Civil Rights Act. Perhaps more moderate Republicans will recognize that a vote for Sessions will be unpopular with both minority and many majority voters in their states and will join with Democrats in denying him the majority vote he needs to be confirmed as attorney general."