New AFJ resource tracks judicial vacancies without nominations

How many judgeships are vacant in your state - without even a nominee?  Use AFJ's new resource to find out:

In many parts of the country, vacant federal judgeships have languished without nominees for more than two years, according to a new resource from Alliance for Justice.

Much attention has been paid to what happens after someone is nominated to fill a vacancy – in particular the obstruction of nominees by Senate Republicans.  But before a nomination ever reaches the Senate it goes through a complex, potentially lengthy process involving the White House and, with few exceptions, a state’s two United States Senators.  At every step, a nomination can be delayed.  In particular, this resource highlights the little-examined role that senators play in the pre-nomination process.

"This new report shines a spotlight on this often-neglected part of the process,” said AFJ President Nan Aron.  “It illustrates the need for a renewed sense of urgency that should begin the moment a judgeship becomes vacant.”

Aron cited examples of unconscionable delay:

“Because of a dispute between senators from California and Idaho, a seat on the 9^th Circuit has been vacant for more than eight years,” Aron said.  “A seat on the 7^th Circuit has been vacant for nearly four years. This kind of systemic failure has to end. The American people deserve better.”
When it comes to seats on federal district courts, there have been delays of two years or more in sending a nominee to the Senate in five states:

• Eastern District of North Carolina: 2,654 days
• Western District of Texas: 1,650 days
• District of Kansas: 1,163 days
• District of Arizona: 1,049 days
• District of Massachusetts: 889 days

“These data, including detailed maps, track the status of every federal court vacancy for which there is not yet a nominee, giving Americans the information they need to demand action,” Aron said.

>>Read AFJ’s new resource
>>Judicial nomination timeline

The urgent need to fix the Senate

Graphic courtesy Fix The Senate Now

As we've noted before on this Blog, the failure of the United States Senate to confirm judges is part of a wider failure – the failure of the Senate itself, brought on by the unprecedented misuse of arcane rules and procedures by the Republican minority.

That's why AFJ is a leader of a coalition called Fix The Senate Now.  And that's why today we debut a new resource page on the urgent need for Senate rules reform.  The page sums up what's wrong, and links to  a set of crucial proposed reforms.

Our take on Mitch McConnell's "self-filibuster"

AFJ released this statement on a spectacle that was absurd even by U.S. Senate standards:

AFJ: McCONNELL “SELF-FILIBUSTER” ILLUSTRATES HOW GOP

TURNS IT INTO “WEAPON OF MASS OBSTRUCTION”

WASHINGTON, D.C., Dec. 7: The spectacle of the Minority Leader of the United States Senate filibustering his own bill perfectly illustrates the extent to which the filibuster has been abused for purely partisan purposes, according to the Alliance for Justice.

Yesterday, Sen. Mitch McConnell (R-Ky.) introduced a bill to allow the President to raise the federal debt ceiling on his own authority.  The idea was to show that Democrats didn’t have the votes to pass such a measure.  But when it turned out the Democrats did have the votes, McConnell was in a bind.  His only way out: filibuster his own bill.

“If we didn’t know better we’d think Sen. McConnell was moonlighting as a writer for The Daily Show or The Colbert Report,” said Nan Aron, President of the Alliance for Justice.  “But Sen. McConnell’s theater-of-the-absurd actually illustrates an extremely serious problem: the paralysis in the Senate caused by Republican abuse of the filibuster.

“The filibuster was intended to be used in extreme circumstances, where fundamental principles were at stake,” said Aron.  “But Senate Republicans have turned it into a weapon of mass obstruction to bring the business of the Senate to a halt. 

“Nowhere is this more apparent than in our federal courts.   As we document in our recent report, Senate Republicans repeatedly have abused the filibuster to block votes on nominees for federal judgeships – including noncontroversial nominees with broad bipartisan support.  That’s led to unconscionable delays and severe hardship for hundreds of thousands of Americans, forced to wait months, sometimes years to fight for their rights in court.

“That’s why it’s time to ring down the curtain on the theater of the absurd and enact serious reforms to Senate rules.”  

The Colbert guide to Senate Rules Reform (and two others)

There are a number of excellent guides out there to the vital issue of reforming the rules of the U.S. Senate.  Here's a brief guide to the guides:

• Alliance for Justice is among the leaders of Fix the Senate Now, a coalition dedicated to reforming Senate rules to end the gridlock that has stalled progressive legislation and prevented confirmation of so many judicial nominees.  Their comprehensive guide to the issue is at www.fixthesenatenow.org 

• AFJ has a briefing paper on the impact of the filibuster on judicial nominees.

• And then there's this very good guide, which speaks for itself:

The Colbert Report
Get More: Colbert Report Full Episodes,Political Humor & Satire Blog,Video Archive

Senate Agrees to Votes on Two District Court Nominees

Paul Grimm

This evening the Senate scheduled a vote on Monday for Paul Grimm, nominee to the United States District Court for the District of Maryland.  Beginning at 5 p.m. on Monday there will be up to 30 minutes of debate on his nomination, so he will likely receive a confirmation vote at or shortly before 5:30 p.m.  Grimm was nominated on Feb. 16, 2012, and he has been pending for 289 days, despite facing no substantive opposition. 

Michael Shea

This evening the Senate also entered into an agreement to vote on Michael P. Shea, nominee to the United States District Court for the District of Connecticut, “at a time to be determined by the Majority Leader, in consultation of the Republican Leader.”  Thirty minutes of debate will precede the vote.  Though an exact date and time for the vote has not yet been scheduled, agreements like these are somewhat common, and the Senate typically sets a vote soon after entering into such an agreement.  Shea was nominated on Feb. 2, 2012, and he was reported out of the Senate Judiciary Committee on a bipartisan vote of 15-3.  

In addition to Grimm and Shea, there are 17 other nominees awaiting votes on the Senate floor, all of whom the Senate could—and should—have voted on months ago.    

Breaking the judicial logjam requires fixing the Senate

We’ve written a lot about the failure of the United States Senate to confirm judges.  But that failure is part of a wider failure – the failure of the Senate itself, brought on by the unprecedented misuse of arcane rules and procedures by the Republican minority.

In addition to obstructing scores of judicial nominees, the abuse of rules, particularly the filibuster, has doomed one essential piece of legislation after another, such as energy and climate legislation, the DREAM Act, and the Employee Free Choice Act.  That’s why AFJ is among the leaders of a coalition called Fix The Senate Now.  And now, in a new report, AFJ is connecting the dots – illustrating the direct link between Republican stalling tactics and the crisis on the federal bench. 

We support modest reforms to restore balance to the legislative process.  America simply cannot function with a Senate in paralysis. 

Click here to read AFJ’s report: Senate Rules Reform and Republican Obstruction of Judicial Nominees.

Jeffrey Toobin on reforming the Senate to get judges confirmed

Jeffrey Toobin, author and legal analyst for The New Yorker and CNN (and guest at a big AFJ event in New York City in December) has an important column on the New Yorker website today on the urgent need to reform Senate rules.

Jeffrey Toobin

In particular, he endorses a proposal that would curb the filibuster, which has been used by Senate Republicans to block almost every major Obama administration initiative.  As is discussed in detail in the previous post, it’s also contributed to a critical shortage of judges, because it’s been misused to block the confirmation of federal judges – even those who are considered noncontroversial.

There are a number of proposals kicking around at the moment.  Toobin singles out what may be the most elegant: require that Senators who want to filibuster do it the old fashioned way, by standing up and talking – and talking, and talking for as long as they can hold out – the way Jimmy Stewart did it in Mr. Smith Goes to Washington.  That might contribute to restoring the filibuster to its intended purpose – blocking the occasional piece of legislation that the minority party considers truly egregious. Toobin writes:

The theory behind their idea is that the requirement to stand up and filibuster would create a real deterrent to the profligate use of the tactic. It’s a modest change—filibusters would still exist—but a useful one.

Though Toobin doesn’t mention it, this change also would make the misuse of the filibuster to obstruct the work of the Senate more visible – and audible – to the American people.  They could watch Senate business grind to a halt as Senators filled hour after hour on C-SPAN for days at a time.

Toobin concludes:

Senate leaders tend to be institutional conservatives, who worry, with some justification, that their party will be in the minority some day. But Republican obstruction has become such an obstacle to legislative progress that the risk seems worth taking.

This is especially true because judicial nominations are likely to be more of a focus for President Obama in his second term. With the House in Republican hands for the foreseeable future, it is unlikely that major legislation will pass both bodies of Congress. But the Senate has a constitutional obligation to take up Obama’s judicial nominees—and the fights over them are likely to be fierce. If Reid and his fellow Democrats give up on filibuster reform, they will likely doom the President’s second-term legacy before he even has a chance to write it.

If you’d like to ask Jeffrey Toobin about this yourself, or hear more from him on this topic, the current state of the Supreme Court and other concerns, please join us in New York City on the evening of Dec. 6, when he discusses these issues with AFJ President Nan Aron.  The event is free, and you can register here.

Republicans block votes on judicial nominees

Breaking with Senate tradition, Republicans block votes on all judicial nominees, including twelve judicial emergencies.



Senator McConnell

In September 2008 the Senate – with a Democratic majority – approved 10 of President George W. Bush’s district court nominees by unanimous consent. So far this September, the Senate has confirmed only one of President Obama’s nominees.  Despite this imbalance, Senate Republicans continue to block consideration of more nominees. 

Just yesterday, Senate Majority Leader Harry Reid (D-NV) sought to confirm a slate of 17 federal district court nominees—almost all of whom are noncontroversial and who were reported out of the Judiciary Committee on voice votes—by unanimous consent.  Senate Minority Leader Mitch McConnell (R-KY), however, objected to the request, leaving these nominees hanging.  Senator McConnell’s action continued the type of obstructionism that has characterized Republicans’ approach to President Obama’s judicial nominees, which started with a filibuster of the President’s first nominee in 2009. 

McConnell’s objection was particularly glaring given that twelve of the seventeen district court nominees would fill judicial emergencies – districts where courts are overwhelmed by a backlog of filings and empty benches prevent Americans from getting their day in court. As Senator Casey (D-PA) noted in his floor speech, this can mean that 86-year-old judges in senior status – judges who should be enjoying their retirement – must continue working as Senate Republicans delay, obstruct, and ultimately deny justice to those waiting at the courthouse doors.

For the most up-to-date and comprehensive information on judicial nominations, visit AFJ's Judicial Selection page.

White House renominates Caitlin Halligan to DC Circuit

Caitlin Halligan

On September 19, Caitlin Halligan was renominated to the District of Columbia Circuit Court of Appeals, along with three nominees to federal district courts. Halligan was initially nominated on September 29, 2010 and had her Senate Judiciary Committee hearing on February 2, 2011. Typical of nominees facing Republican obstructionism during President Obama’s term, Halligan was blocked by a filibuster, losing a cloture vote 54-45 on December 6, 2011. After being returned to the President for the first time on December 17, 2011, she was renominated on June 11, 2011 and returned to the President a second time on August 7, 2012, before being renominated for a second time this week. 

Halligan’s nomination has wide support from a diverse range of groups, including women’s bar associations and law enforcement officials.
 
For the most up-to-date and comprehensive information on judicial nominations, visit AFJ's Judicial Selection page.

President Obama Nominates Rose, Shea

President Obama yesterday nominated Stephanie Marie Rose to the United States District Court for the Southern District of Iowa, and Michael Shea to the United States District Court of Connecticut.

Ms. Rose is currently the United States Attorney for the Northern District of Iowa; she has been appointed to fill a seat that will become vacant in July when incumbent Judge Robert W. Pratt takes senior status. Mr. Shea is in private practice at Day Pitney LLP in Hartford, CT; he has been appointed to fill the seat vacated on November 28, 2011 when Judge Christopher Droney, who previously held the seat, was confirmed to the Second Circuit.

With these nominations, there are now 41 nominees pending for the 105 current and future vacancies in the federal judiciary. For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

Age of Obama's Judicial Nominees

Alliance for Justice recently released a report on the state of the judiciary during the first three years of the Obama administration. In addition to vacancy, nomination, and confirmation rates, we examined demographic and background information on each of Obama's nominees.

The average age of President Obama's appointees -- 52.0 years old -- is considerably higher than the average age of any of the last three Republican presidents' confirmed judges. The age discrepancy is particularly glaring for circuit court appointees, who have been, on average, 4-6 years older than Republican presidents' appointees. Republican presidents have shown no hesitancy in nominating people under 50 to circuit court seats, and in fact placed a premium on selecting young nominees.

If you examine the age distribution of Obama's nominees, it is apparent that they skew marginally toard the upper 50s, raising his average above his predecessors.

Click to enlarge

For more information on the demographic and professional backgrounds of Obama's judicial nominees, download our latest report, "The State of the Judiciary: Judicial Nominations During the First Three Years of the Obama Presidency."

Senate Judiciary Committee Hearing for Morgan

The Senate Judiciary Committee today held a hearing on the nomination of Susie Morgan to the United States District Court for the Eastern District of Louisiana. Senator Chris Coons (D-DE) presided over the hearing; also in attendance were ranking member Senator Chuck Grassley (R-IA) and Senator Mike Lee (R-UT). Morgan was nominated by President Obama on June 7, 2011 and has waited 135 days to have her hearing before the Committee.

For the most up-to-date and comprehensive information on judicial nominations see our Judicial Selection Project page.

Three Nominees Confirmed; 23 Left Waiting

The Senate voted to confirm three nominees to U.S. District Court seats today.  Mark Raymond Hornak and Robert N. Scola, Jr. were confirmed by unanimous consent to seats in the Western District of Pennsylvania and the Southern District of Florida, respectively.  Robert David Mariani was confirmed by a bipartisan vote of 82-17 to a seat in the Middle District of Pennsylvania.

Mariani, nominated on Dec. 1, 2010, has waited 323 days to be confirmed to fill his seat which has been declared a judicial emergency by the Administrative Office of the U.S. Courts.  It has been 91 days since he was reported out of the Senate Judiciary Committee without opposition on July 21.  Scola is also filling a judicial emergency vacancy; it has been 169 days since his nomination on May 4, 2011.  Hornak, like Mariani, has waited 323 days for his unanimous confirmation by the Senate.

For the most accurate, up-to-date information on the judicial selection process, visit the Judicial Selection Project page.

Senate Confirms Three District Court Nominees

Today, the Senate confirmed Alison Nathan to the United States District Court for the Southern District of New York by a vote of 48-44; Susan O. Hickey to the United States District Court for the Western District of Arkansas by a bipartisan vote of 83-8; and Katherine B. Forrest to the United States District Court for the Southern District of New York by a unanimous voice vote.

The Senate took no action on 27 other judicial nominees currently pending on the Senate floor, 26 of whom were reported out of committee either unanimously or with strong bipartisan support and 9 of whom have been nominated to fill vacancies that are “judicial emergencies” as determined by the Administrative Office of the U.S. Courts. There are now 107 current and future vacancies in the federal judiciary—1 in 8 judgeships— and only 7 fewer than there were at the beginning of the current Congress.

With the confirmation of Alison Nathan, the number of life-tenured openly gay federal judges has increased to three; two of these were appointed by President Obama and one by President Clinton.

For the most accurate, up-to-date information on the judicial selection process, visit the Alliance’s Judicial Selection webpage.

Thirty Nominees Awaiting Final Senate Votes

Today the Senate Judiciary Committee voted five judicial nominees out of committee, moving them forward to the full Senate for confirmation, bringing the total number of nominees awaiting floor votes to 30.  

Adalberto José Jordán, nominee to be United States Circuit Judge for the Eleventh Circuit, and three United States District Court nominees: Mary Elizabeth Phillips to the Western District of Missouri, Thomas Owen Rice to the Eastern District of Washington, and David Nuffer to the  District of Utah were reported out on a unanimous, en banc voice vote. John M. Gerrard to the District of Nebraska, was reported out on a bipartisan voice vote, with only one senator voting no.

Both Jordán and Nuffer have been appointed to fill vacancies designated as “judicial emergencies” by the Administrative Office of the United States Courts. Currently there are 32 judicial emergency vacancies, with 20 persons nominated to fill the seats. 

Responding to the strain being placed on our justice system by the lack of judges in the courts, the Committee also reported out S.1014, the Emergency Judicial Relief Act on a vote of 15-3, with Senators Grassley (R-IA), Sessions (R-AL), and Coburn (R-OK) voting no. The bill would establish ten new judgeships in parts of the country where courts are overloaded because the bench is woefully understaffed.

Holding swift votes on the 30 nominees pending on the Senate floor, all but 1 of whom came out of Committee with little or token opposition, is one way the Senate can take direct, immediate action to ease the burden on our judiciary and ensure that the American people have access to justice.

For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Project webpage.

Obama Nominates Shwartz to the Third Circuit

President Obama has nominated Judge Patty Shwartz to the United States Circuit Court of Appeals for the Third Circuit. Since 2003, she has served as a Magistrate Judge on the United States District Court for the District of New Jersey.  She has taught as an adjunct professor of law at Fordham University School of Law since 2009.

Judge Shwartz graduated from Rutgers University in 1983 with highest honors and was named the Outstanding Woman Law Graduate of her class upon graduating from the University of Pennsylvania Law School in 1986.  Her previous legal experience includes working as an associate at Pepper, Hamilton & Scheetz (now Pepper Hamilton LLP);  serving as a law clerk to the Honorable Harold A. Ackerman of the United States District Court for the District of New Jersey from 1987 to 1989; and working in a variety of positions in the United States Attorney’s Office for the District of New Jersey from 1989-2002.

With this nomination, there are now 53 nominees pending for the 109 current and future vacancies in the federal judiciary.  For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

Hearings on Five Nominees, Two to Fill Judicial Emergencies

The Senate Judiciary Committee today held hearings on the nominations of Stephanie Dawn Thacker to the United States Court of Appeals for the Fourth Circuit and of Michael Walter Fitzgerald, Ronnie Abrams, Rudolph Contreras, and Miranda Du to serve as United States District Judges in the Central District of California, the Southern District of New York, the District of Columbia, and the District of Nevada, respectively.

If confirmed, Fitzgerald and Du will both be filling vacancies that have been deemed “judicial emergencies” by the Administrative Office of the U.S. Courts. Senator Dick Durbin (D-IL) presided over the hearings; also in attendance were committee members Senator Mike Lee (R-UT) and Senator Chris Coons (D-MD).

With 108 vacancies in our federal courts, 32 of them judicial emergencies, the Senate should move swiftly to put these well-qualified nominees on the federal bench.

For the most up-to-date and comprehensive information on judicial nominations, download the Alliance for Justice’s Judicial Selection Snapshot and The State of the Judiciary May–August 2011: Judicial Nominations in the 112th Congress.

A Bill To Create New Federal Judgeships

On October 6, the Senate Judiciary Committee will consider S.1014, The Emergency Judicial Relief Act of 2011.

The bill, introduced by Senator Dianne Feinstein (D-CA) in May, would create 10 new district court judgeships:

• 2 for the District of Arizona
• 4 for the Eastern District of California
• 1 for the District of Minnesota
• 1 for the Southern District of Texas
• 2 for the Western District of Texas

The bill would also convert existing temporary judgeships in the District of Arizona and the Central District of California into permanent judgeships. The incumbents in the current temporary judgeships would remain in the converted seats, and the president would name nominees to fill the new positions.

The bill has bipartisan support from co-sponsors Senator Barbra Boxer (D-CA); Senator John Cornyn (R-TX); Senator Al Franken (D-MN); Senator Kay Bailey Hutchison (R-TX); Senator Amy Klobuchar (D-MN); Senator John Kyl (R-AZ); and Senator John McCain (R-AZ).

Also on October 6, the committee will vote on five judicial nominees: Evan Wallach to the United States Circuit Court for the Federal Circuit, and four United States District Court nominees (Dana Christensen, District of Montana; Cathy Bencivengo, Southern District of California; Gina Marie Groh, Northern District of West Virginia; Margo Brodie, Eastern District of New York). 

All five were automatically held over by the Republican members of the Judiciary Committee at its last Executive Business meeting, rather than being considered on the day their nominations were first brought to the committee.

The creation of new federal judicial seats and the confirmation of nominees to fill them will help to ease the crushing case-loads that are currently overwhelming inadequately staffed federal courts and preventing people from gaining access to justice.

For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

President Obama Makes 2 New Nominations

President Obama has nominated Stephanie Dawn Thacker to the United States Circuit Court for the Fourth Circuit and Gregg Jeffrey Costa to the United States District Court for the Southern District of Texas. Ms. Thacker would fill the seat left open by the death of Judge Michael, and Mr. Costa would fill a judicial emergency seat created when Judge Rainey took senior status. Ms. Thacker is currently a practicing attorney and adjunct professor of law specializing in complex litigation, environmental and toxic tort litigation, and criminal defense. From 1994-1999 she served as an Assistant United States Attorney, taking part in the first prosecution in the nation under the Violence Against Women Act. She worked for the Department of Justice at the Child Exploitation and Obscenity Section from 1999-2006, focusing on issues related to sex trafficking, sex tourism, child sexual exploitation and related matters. Mr. Costa has served as an Assistant United States Attorney in the Southern District of Texas since 2005. He clerked for Chief Justice William Rehnquist from 2001-2002 after serving for a year as a Bristow Fellow at the Office of the Solicitor General in the United States Department of Justice. Before entering law school, he was a school teacher in Mississippi through the Teach for America program.

With these nominations, there are now 57 nominees pending for the 113 vacancies in the federal judiciary. For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

Two Nominated to District Courts

President Obama has nominated Judge David Ogden Nuffer to the United States District Court for the District of Utah, and Thomas Owen Rice to the United States District Court for the Eastern District of Washington.

Judge Nuffer is a United States Magistrate Judge for the District of Utah, a position he has held on a full-time basis since 2003 and held on a part-time basis from 1995 to 2003. Mr. Rice is an Assistant United States Attorney for the Eastern District of Washington, a position he has held since 1987. The seat to which Judge Nuffer has been nominated is considered to be a judicial emergency by the Administrative Office of the U.S. Courts.

For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.