New report from AFJ blasts impact of Republicans' "ceaseless obstruction of judicial nominees"

AFJ released this press release today:

WASHINGTON, D.C.,  Nov. 19, 2012 —  “Ceaseless obstruction of judicial nominees” has left the federal bench with more vacancies than when President Obama first took office, according to a new study from the Alliance for Justice.

“The Republican record gives new meaning to the term ‘obstruction of justice’” said AFJ president Nan Aron.  “When vacancies go unfilled, Americans wait months, sometimes years to get a chance to stand up for their rights in court.  Some lose that chance entirely.”

AFJ’s report, Unfinished Business, provides the best publicly-available information on judicial nominations. It includes comprehensive statistics on President Obama’s judicial nominees since the beginning of his administration, the Senate’s confirmation process, and comparative data comparing the first-term records of the Obama, Bush, and Clinton administrations.

The report calls on the Senate to “confirm all of the 19 nominees currently pending on the Senate floor during the lame duck session.  Fourteen of the 19 nominees faced no substantive opposition in the Judiciary Committee, and ten would fill judicial emergencies,” – that is, situations where a vacancy has caused such profound delays that the situation has been declared an emergency by the Administrative Office of the U.S. Courts.

“We call on the Senators to give Americans something to be thankful for and confirm these judges when they return to work next week,” Aron said.

This report is the latest in a series documenting delays in filling judicial vacancies.  Among the findings:

• During President Obama’s first term, current vacancies have risen by 51%.  This trend stands in stark contrast to President Clinton and President Bush’s first four years, when vacancies declined by 65% and 34%, respectively.
• Nearly one out of eleven Federal judgeships remains vacant. Judicial vacancies are nearly triple what they were at this point in President George W. Bush’s first term.
• The number of seats considered to be “judicial emergencies” has risen by 65%, from 20 at the beginning of President Obama’s term to 33.
• The Senate has confirmed far fewer nominees at this point in President Obama’s first term than it had for his two predecessors in office. The percentage of confirmed district court nominees is at historically low levels.
• Republican appointees still dominate the federal judiciary. Since the end of the Bush Administration, the percentage of Republican-appointed circuit court judges only dropped from 61.3% to 51.8%, and the percentage of Republican-appointed district court judges only dropped from 58.6% to 53.6%.
• Republicans filibustered a historic number of district court nominees. Senate Majority Leader Harry Reid (D-NV) was forced to file cloture on a record 20 district court nominees. Cloture was filed on only one district court nominee during the Clinton and W. Bush presidencies.

“In sum,” the report states, “The American people deserve a federal court system that is fully staffed and able to fulfill the promise of justice for all.”

The full report is available here (PDF).
And click here if you want to help us press the Senate to confirm these nominees.

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.

American Idle: Democratic Senators Call Out GOP Obstruction

Democratic Senators took to the floor of the Senate today to protest the unprecedented level of obstruction towards nominees by their Republican colleagues.

The Obama administration has 64 nominees pending in the Senate.

There are currently 6 circuit court nominees awaiting a final confirmation vote:

• Jane Stranch and Thomas Vanaskie were nominated on August 6, 2009: pending 218 days
• Denny Chin and Rogeriee Thompson were nominated on October 6, 2009: pending 157 days
• Alberto Diaz and James Wynn were nominated on November 4, 2009: pending 128 days

Over half of Bush’s nominees were confirmed by either unanimous consent or voice vote. In this Congress, Republicans have required cloture votes on uncontroversial nominees such as as Barbara Keenan for the 4^th Circuit Court of Appeals who was ultimately confirmed by a vote of 99-0.

That’s right, 99-0. The same people who requested the vote did not even voice opposition.

They are stalling not on the basis of the nominees’ records or qualifications, but simply to obstruct Obama’s nominees. In addition to Keen, there is the example of Judge Greenaway, despite the fact that he was reported out of committee unopposed and was confirmed without opposition, he had to wait 235 days—almost eight months—for a final vote where he was confirmed 84-0. Jane Stranch and Thomas Vanaskie are rapidly approaching that same timeline, both have been waiting 218 days.

There are currently 102 federal court vacancies, and according to the Senate Judiciary Committee, 31 of those vacancies are classified as “judicial emergencies” because of the size of the caseload in the court or the amount of time a seat has sat empty.

Senator Franken (D-MN) summed it up well during his speech on the Senate floor today:

American Idle: Once Again GOP Senators Perfect Art of Stalling

169 days after she was nominated, the Senate confirmed Judge Barbara Milano Keenan to a seat on the Fourth Circuit Court of Appeals by a vote of 99-0 today. Republicans raised no issues or concerns with Judge Keenan's record, but despite the fact that she was reported out of committee unopposed, they forced a cloture vote on her confirmation.

Even more shocking than the amount of time it took for Keenan to be confirmed, nearly six months, is the fact that no opposition was ever voiced. This is the 17th time that the Senate has filibustered one of President Obama’s nominees, and is part of a pattern of partisan obstruction.

This is the epitome of Republican Senators using procedural rules to obstruct uncontroversial nominees for no reason other than pure partisan politics. In 1991 Judge Keenan was elected to the Supreme Court of Virginia, where she has remained since.

Nominations to the federal courts of appeal are significant for obvious reasons, but the Fourth Circuit is unique. The Court has heard a significant number of cases involving the scope of executive power. And, a large number of civil rights claims related to race, gender, and employment discrimination are litigated within its districts. Although the Court has long been considered a bastion of ultraconservatism, after a series of departures it is now more evenly split. Thus, single additions to the bench—including Judge Keenan’s—will very likely impact the Court’s overall jurisprudential leanings.

American Idle: Dawn Johnsen committee vote delayed

On February 4, the Senate Judiciary Committee had scheduled a vote on Dawn Johnsen, nominee to head the Office of Legal Counsel, but the vote never happened. After spending more than an hour considering other nominees also scheduled for votes, the committee ended its meeting because a number of senators had to leave to attend to other business, causing the committee to lose the quorum necessary to hold votes.

Johnsen is supremely well-qualified. Before a distinguished career as a Constitutional law professor, Johnsen served as acting head of the OLC for a full year during the Clinton administration. Her performance in this role was so exemplary that it was lauded by Republican-appointed Doug Kmiec, head of the OLC under presidents Reagan and Bush senior. Kmiec praised Johnsen’s independent judgment, saying that she “repeatedly separated policy preference from rendered opinion.” Johnsen also has the support of her Republican home state senator. Despite outstanding qualifications and recommendations, Johnsen’s nomination has sat idle in the Senate, requiring a second nomination by President Obama. Hopefully, with the support of Richard Lugar (R-IN) and Arlen Spector (D-PA), Johnsen’s confirmation vote will be able to successfully move past a legislative quagmire.

It is past time that Republicans in the Senate stopped reducing judicial and executive nominations into a partisan, ideological battlefield. The American people deserve a fully functional government that can ensure adherence to the rule of law. A proper OLC director with integrity and good judgment is crucial to that end. The office is routinely called upon to draw fine distinctions in the potential legality of proposed policies and executive orders, to ensure that the President follows established law. After gross misconduct of OLC attorneys in recent years, the OLC would be well served by a director with the experience, integrity, and intellect of Dawn Johnsen.

“Justice Can’t Wait:” Report on Judicial Selection in the Obama Administration

A new report on judicial selection in the first ten months of the Obama administration was released this week by Alliance for Justice.

“While Republicans play politics to stir up their base, more than 97 federal judgeships remain open,” said Nan Aron, president, Alliance for Justice. “America needs strong voices on our federal courts, upholding the Constitution and the law to ensure equal justice for all, not partisan games that delay putting highly qualified nominees on the bench.”

The report is an assessment of progress toward equal justice for all at the start of the Obama administration. The report’s findings show that not enough progress has been made, with only five federal judges confirmed by the Senate, 22 nominees pending, and 97 vacancies on the federal bench.

According to the report:
Resorting to the same old playbook of partisan politics, Republicans are obstructing the judicial nomination process as a last-ditch effort to maintain their hold over the judiciary and halt a return to a balance of power. They are also using attacks on Obama’s nominees as an opportunity to keep their base engaged. Americans deserve better than simple party politics, and it is time for the White House and Senate leadership to move expeditiously to nominate and confirm judges.

The report points out:

President Obama has nominated highly qualified attorneys and judges to the federal bench – and yet Republicans have responded by either delaying the votes or outright attacking individual nominees. Every Republican in the Senate signed a letter on March 4, 2009 about six weeks after President Obama took office, effectively appropriating to themselves the nominating power of the executive branch by vowing to block nominees whom they did not approve. Since then, they have carried out that threat.

The full report is available on our web site.