Benched! The more things change…

February 12, 2015 | 

In an interview with Iowa Public Radio, shortly after being named chair of the Senate Judiciary Committee, Senator Chuck Grassley, R-Iowa, said, “I have no reason to believe that the future is any different” for the committee.

He was right. Even with Senator Grassley as chair, Republican obstructionism continues in the Senate Judiciary Committee.

In a previous edition of Benched!, we explained how, when Democrats controlled the Senate,  Republicans would routinely and needlessly “hold over” judicial and executive nominees rather than allowing the committee to vote at the first opportunity. This procedural tactic, normally reserved as a courtesy to senators who need more time to examine a candidate’s record, allowed Republicans to take an extra week before sending nominees to the Senate floor.

But now it’s the Republicans, not Democrats, who are setting the committee schedule. And while it might be reasonable in some cases for the minority party to need more time on a nominee, it is plainly a pretext for the majority party to claim it needs more time than it has given itself. Paul Gordon at People for the American Way explained this yesterday, writing that today we would find out “whether Republicans will continue one of the indefensible forms of obstruction that they engaged in for six years while in the minority.”

This morning, we got our answer. Without explanation, Senator Grassley held over the nominations of four federal judges and Attorney General nominee Loretta Lynch.

All four of the judicial nominees are uncontroversial. They would fill district court seats in Utah and Texas, and have the support of their home-state Republican senators on the committee. Lynch has the support of many Republicans on the committee, including Senator Lindsey Graham (R-S.C.), who told reporters “I’m ready to vote.”

For no apparent reason, Texans will now have to wait an extra week until two vacancies deemed “judicial emergencies” by the U.S. Courts—seats that have been empty for over 700 days each—will be filled. The country will have to wait an extra week for a new attorney general, whose confirmation has already taken the longest of any attorney general nominee in the past 30 years.

Republican obstructionism stays the same.

Benched! Keeping Credit 
Where Credit is Due

January 13, 2015

A little over a week into the new Congress, and Senate Judiciary Chairman Chuck Grassley, R-Iowa, has already begun laying the groundwork to limit the number of President Obama’s judicial nominees the Senate will confirm.

As we detailed earlier this week, presidents have historically continued filling judicial vacancies even with an opposition Senate in their final two years of office. On average, 20 percent of a president’s total judicial confirmations—which would be 76 judges for President Obama—are confirmed in the final two years of office.

The Senate has not yet confirmed any nominees this year. Nonetheless, in a recent article, a Grassley spokeswoman said that the Senator has already started tallying his confirmations for the 114th Congress, presumably to limit the number of additional nominees the Senate will confirm.

Under Grassley’s version of new math,  the current Senate has already confirmed 11 judges.  Grassley counts these judges even though they were reported out of committee and confirmed not in the current Senate, the one in which Republicans are in the majority, but by the last Senate during its “lame duck” session.

Of course,  these confirmations were not the accomplishments of Senator Grassley or Senate Republicans. In fact, Senator Grassley delayed the confirmations for which he now seeks credit and opposed confirming any nominees reported out of committee during the lame duck session. Senate Republicans even blocked their own states’ nominees and forced Democratic leadership to file cloture motions on uncontroversial judges, all while many argued that confirmations should be shut down entirely during the lame duck.

Manipulating confirmation numbers and claiming credit where it isn’t due does nothing to fill the 44 current judicial vacancies and many more (25 already announced) that will open in 2015. It does nothing for people living in Pennsylvania and Texas, where numerous, longstanding vacancies and rising caseloads have left individuals waiting in line for justice.

Iowa’s largest newspaper has called on Senator Grassley to end obstructionist policies and confirm qualified judges to the bench, and Grassley himself has promised to hold hearings soon on pending nominees. We hope he chooses to do so.

SJC Republicans to D.C. Circuit nominee Millett: “It’s not you; it’s the institution.”

By Michelle D. Schwartz
Director of Justice Programs

If there’s a new Era of Good Feelings prevailing in the Senate with respect to President Obama’s nominees to key posts, apparently the Republican members of the Senate Judiciary Committee didn’t get the memo.
 

Patricia Millett

This morning, they voted in lockstep against sending Patricia Millett—one of the president’s three mainstream, supremely qualified nominees to the D.C. Circuit Court of Appeals—to the Senate floor.  In doing so, they went out of their way to be clear that their beef was not with the nominee herself, but with allowing the D.C. Circuit to function with a full complement of judges.  In fact, as we have written previously, the Republican members of the Senate Judiciary Committee, led by Ranking Member Chuck Grassley, R-Iowa, began their absurd campaign against filling the three vacancies on our nation’s second most important court even before they knew who the nominees were.

In other words, “it’s not you; it’s the institution.”

To paraphrase Troy McClure from The Simpsons, you may remember this argument from such nomination fights as the National Labor Relations Board, the Consumer Financial Protection Bureau, the Environmental Protection Agency, and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), to name a few.

We hope that, as with those nominees, Senate Republicans come to their senses and allow yes-or-no votes on all three nominees to the D.C. Circuit.  We have good company in that hope.  Just yesterday, we were proud to be one of 97 organizations nationwide to send a letter calling on all senators to allow yes-or-no confirmation votes for Patricia Millett, Cornelia Pillard, and Judge Robert Wilkins.  As we wrote in that letter:

Whether you support or oppose Millett, Pillard, and Wilkins, please allow the American people to see you and your Senate colleagues express that position in a yes-or-no confirmation vote for all three nominees. 

Otherwise, the Era of Good Feelings will be a very short one indeed.

Senate Judiciary Committee hearing on the Voting Rights Act: “Section 5 has no peer”

This post discusses the testimony of Rep. John Lewis at a hearing of the Senate Judiciary Committee.  Rep. Lewis also was the keynote speaker at AFJ's annual luncheon for young activists.  You can see the video of that event at www.afj.org   And read about some young people who are following Rep. Lewis' example on our Bolder Advocacy blog.

By Natalie Knight
AFJ Summer Associate

Rep. John Lewis

In Selma, Alabama in 1965, John Lewis led a group of protesters across a bridge where they were attacked by state troopers.  The story, images, and videos from that attack became a powerful force for the eventual passage of the original Voting Rights Act of 1965 (VRA).  The work of these peaceful protestors and decades of bipartisan cooperation to renew the VRA were unraveled when the conservative bloc of the Supreme Court gutted Section 4 of the VRA in its recent decision in Shelby County v. Holder.  This past Wednesday, Representative John Lewis, D-Ga., came before the Senate Judiciary Committee for a hearing that acknowledged the long struggle for voting rights in which Rep. Lewis played such an important role: “From Selma to Shelby County: Working Together to Restore the Protections of the Voting Rights Act.”

Rep. Lewis recounted his personal involvement in the voting rights movement before turning to the grim reality that the Supreme Court’s decision in Shelby County has already had a profound impact on the right to vote.  In Shelby County, the five conservative justices held that the latest reauthorization of the VRA impermissibly relied on old data to decide which regions had to get approval from the federal government (a process called “preclearance”) before changing voting policies so that the federal government could ensure they were not disenfranchising minority communities (as detailed in Section 5 of the VRA).  At the hearing, Sen. Chuck Grassley, R-Iowa, echoed the decision by Chief Justice Roberts, recounting the numerous improvements in equality for African Americans and other minority populations since the original passage of the VRA as evidence that the VRA was outdated.

But Rep. Lewis explained that while progress has been made, the reaction to the Shelby decision showed just how crucial VRA still is for protecting voters’ rights.  “Only hours after the decision was announced by the Supreme Court—before the ink was even dry—states began to put into force efforts to suppress people’s voting rights,” he testified.  Senator Durbin noted that there is absolutely no evidence of the alleged voter fraud that has been used to justify voter ID laws and other voting restrictions that have been advanced by the conservative American Legislative Exchange Council and enacted by certain states, especially those that were until recently covered by Section 5 of the VRA.

Rep. James Sensenbrenner, Jr., R-Wis., who was chairman of the House Judiciary Committee during the last reauthorization of the VRA, explained that “Congress amassed a legislative record that totaled more than 15,000 pages documenting widespread evidence of intentional discrimination” and that the Shelby decision “disregarded years of work by Congress.”

In contrast, Michael Carvin, an attorney at the corporate law firm Jones Day who has represented states in their attempts to preserve burdensome voting restrictions, stated that while Congress gathered 15,000 pages of evidence, they didn’t use it when reauthorizing the VRA but instead used the same formula from 1965 to decide which regions were subject to preclearance under Section 5 of the VRA. Apparently, Carvin did not allow for the possibility that, in those 15,000 pages, Congress found that the regions with the greatest problems in ensuring equal voting rights for all Americans in 1965 were highly correlated with those that had the greatest problems in 2006. Congress also included a provision that allowed areas covered by the formula to be “bailed out” from the preclearance requirement when they could show they didn’t have discriminatory practices. Since then, some jurisdictions have successfully bailed out of the preclearance requirement of the VRA.

Carvin went on to explain that Section 2 of the VRA, which is still in effect, allows for lawsuits after discriminatory laws and practices have already been adopted and is sufficient to protect voters’ rights.  But Professor Justin Levitt, an expert in voting rights who teaches at Loyola Law School, noted the numerous ways in which Section 2 is insufficient.  Bringing a lawsuit after discrimination has occurred often leaves in place those who were elected through illegal practices.  Even if future elections are fair and open, those elected under the spurious procedures now have the benefit of incumbency.  Additionally, a lawsuit is much more expensive than preclearance and places the initial cost on those who were discriminated against.  Sometimes the data necessary to actually win in such a lawsuit may be nearly impossible or prohibitively burdensome to obtain.  Because Section 2 lawsuits are so costly and because the damage has often been done by the time a lawsuit has ended, lawmakers are aware that many voter restrictions will simply go unchallenged.   Thus, Section 2 fails to provide the deterrent effect which was achieved by having to first submit any proposed changes to the federal government.  As Aventura, Florida Commissioner Luz Urbaez Weinberg (a Republican and the only Hispanic elected to her office) emphasized, “Section 5 has no peer.”

As the House and Senate work to create a new formula to reinvigorate the powerful protections of preclearance under Section 5, it is important to carefully consider what data might be used to create a law that protects the rights of all Americans to vote without fear of discrimination.  Since preclearance prevented many laws that could have resulted in Section 2 lawsuits, Congress should look beyond these lawsuits for evidence of discriminatory practices.  Since, as Commissioner Urbaez Weinberg explained, voter discrimination has gotten even “sneakier” in many areas that were not previously covered by Section 4, Congress should look at what new areas might need preclearance.  Since in 2012, African Americans and Hispanics waited nearly twice as long to vote as whites, voter wait times may also be a critical indicator for preclearance.

We agree with Sen. Grassley that “any legislative fix [to restore Section 5] should not threaten common sense measures to ensure the integrity of voting.” But Sen. Grassley  was referring to a proposal to exempt Voter ID laws from scrutiny. Common sense dictates that if thousands of pages of evidence of voter discrimination were necessary to reauthorize the Voting Rights Act then something more than unsubstantiated claims of voter fraud are necessary to permit restrictive voter identification laws.  I hope Senator Grassley and his colleagues will not delay the restoration of the VRA with fictions of voter fraud in light of the urgent, documented need to protect voting rights.

As Congress considers how to reinvigorate Section 5 by creating a new preclearance formula, we hope all members of Congress will remember the words of Commissioner Urbaez Weinberg: “The Voting Rights Act is not a partisan issue; it is an American issue.”

Read more about the Voting Rights Act, and the arguments in Shelby County v. Holder.

The D.C. Circuit workload: Senator Blumenthal sets the record straight

Watch Sen. Blumenthal discuss the caseload of the D.C. Circuit:



On July 24th, Cornelia “Nina” Pillard appeared before the Senate Judiciary Committee for a hearing on her nomination to the United States Court of Appeals for the District of Columbia Circuit. Senate Republicans have long attempted to obstruct any and all of President Obama’s nominees to the D.C. Circuit, making him the first president in recent history to have no nominees confirmed to the court in his first term, and only recently allowing Sri Srinivasan a confirmation to the 8th seat on the 11-seat court.

Ranking Member Sen. Chuck Grassley (R-Iowa) used the hearing as an opportunity to repeat a long-refuted argument: the D.C. Circuit is underworked, and so rather than confirm President Obama’s nominees to vacant seats, the remaining open judgeships should be stripped from the court in an effort that has been called “reverse court packing.” In fact, the Senate, with Republican support, has quickly and unanimously confirmed judges to the 8th and 10th Circuits, each of which has fewer cases per active and authorized judge. Grassley, attempting to shift the goalposts, is now arguing for a new measure: filed and resolved cases per active judge. Grassley even solicited anonymous support for his position from D.C. Circuit judges.

Senator Richard Blumenthal (D-Conn.), chairing the hearing, swiftly refuted Grassley’s transparent effort to shift the focus of the Circuit’s workload. As a former attorney general and U.S. Attorney for the District of Connecticut, Sen. Blumenthal knows from personal experience that not all filings are created equal; cases vary remarkably in their complexity and the amount of time required to resolve. Indeed, the statistics Sen. Grassley cites – that the D.C. Circuit has fewer filings but higher active pending cases per judge – lend support to the reality that the cases heard by the D.C. Circuit are far more complex and time-consuming than those before other circuits. That is why the Administrative Office of U.S. Courts continues to recommend that the D.C. Circuit maintain 11 judgeships. Sen. Blumenthal came prepared with public statements from current and former D.C. Circuit judges – including Republican appointees John Roberts, Laurence Silberman, and Douglas Ginsburg – attesting to the increasing and highly complex workload of the nation’s second most important court.

Senate Republicans should stop trying to distort reality in their efforts to block President Obama’s highly qualified D.C. Circuit nominees. All three nominees should be allowed up-or-down votes without delay. We look forward to these distinguished legal luminaries taking the bench so that the D.C. Circuit can do its work with a full complement of judges.

Nan Aron on "The Broken Senate"

This is AFJ President Nan Aron's statement for today's forum at the National Press Club called "Fixing the Broken Senate: Restoring Democracy and Fixing the Filibuster."  

 ●Watch video of the forum at www.afj.org 
 ● Read more about Senate rules reform

Alliance for Justice is very pleased to be a part of this discussion about the “Broken Senate.” I feel like we’re coming to the end of the fifth season of a bad reality show.

Nan Aron

But what’s happening in the Senate is not fiction. It’s very real. The abuse of the filibuster has become a threat to the proper functioning of the government and to public faith in the institution of the Senate.  A recent poll by The Economist put the approval rate of Congress at nine percent. That’s incredible, but not really surprising.  It does make me wonder who those nine percent are. Family members? Campaign consultants?

It’s deplorable that the American people have so little regard for a crucial part of our government. It’s unhealthy for our democracy. And I don’t think there is any question that at least part of the problem has been the rampant misuse of the filibuster in the Senate, which has led to stalemate and gridlock in spite of the enormous problems the country now faces.

Let me be clear about something: The filibuster has a legitimate role when used responsibly. But we have entered an era of unprecedented abuse of rules and traditions, which is forcing the Senate to the brink of drastic action. The filibuster traditionally has been used to allow a minority to make a principled stand on matters of enormous and unusual importance.  It forces the process to slow down and helps ensure that all voices are heard. It’s a signal that something of significance is at stake. But that’s not what’s happening now.

This is the crucial point to understand.  As the motivation behind the filibuster has changed and its frequency increased, its legitimacy has declined. The fights over President Obama’s judicial nominees, for instance, are not ideological in any real sense. The president has gone out of his way to nominate men and women from the legal and political mainstream. Who could honestly say that the filibuster of Caitlin Halligan was some kind of titanic ideological fight?

Today’s filibusters are just crass politics. They reflect a desire to block the president’s agenda at every turn and feed the insatiable need of a hyper-partisan political base for endless obstruction. We’re in an era where one side believes cooperation is a dirty word—or an invitation to a primary challenge. When that intransigent attitude is paired with a procedural weapon as potent as the filibuster, gridlock is the result.  And that’s what makes the situation different today from what it has been in the past. And that’s why the nuclear option is back on the table.


Serious talk about changing the rules has been reborn because the filibuster has evolved from a                            
targeted tool to a weapon of indiscriminate disruption. The entire legislative process is now held captive to this threat. We’ve gotten to the point where just the threat of a filibuster is enough to derail the Senate. The abuse of the process has created a de facto threshold of 60 votes for action—a supermajority requirement for everyday business that can be found nowhere in the Constitution.

It’s important to remember that the problem isn’t just that bills and nominations with clear majorities are stopped, but that many nominations are never made and bills are never proposed, even though they could achieve a simple majority if they were given a chance. There is an invisible price for gridlock that the public never sees.

Obviously, the first test will come in the next few days when cloture petitions are expected to be filed on a series of executive branch nominees—Richard Cordray, Tom Perez, Gina McCarthy, and nominees for the National Labor Relations Board. What happens to these highly qualified nominees will set the tone for the rest of this Congress. If Republicans continue their current behavior and prevent final votes, then the choices will be narrowed to two options: allow crucial agencies that deal with hugely important issues to be left leaderless or reform the rules to permit up-or-down votes.

But the battle over executive nominees is just the beginning. The next big fight looming later this summer is over the President’s three nominees to the D.C. Circuit Court of Appeals.  This is a case of the Republicans engaging in what will be a kind of Group Filibuster, where they don’t even pretend to care about the qualifications or ideologies of the individual nominees.  They just don’t want anyone appointed by President Obama to this crucial court no matter who they are.

Senator Grassley has complained that the President is trying to “pack the court,” as if filling vacant judgeships is some kind of unprecedented power grab. Republicans pretend to be outraged that the president has sent names forward for empty seats on the 11-member D.C. Circuit--just like every other president has done since the Grover Cleveland administration. This would be laughable if the consequences weren’t so serious.

Of course, we know why the Republicans will threaten to filibuster Patricia Millett, Nina Pillard, and Robert Wilkins. The D.C. Circuit is the federal appeals court that most closely oversees the actions of federal agencies on topics like the environment, consumer protections, workers’ rights, banking regulations, and other vital issues. Those are the same issues, by the way, that are at stake in the current executive nominations fights.  In some ways, the two big summer battles over executive and judicial nominations are really one big fight over the future of the country. Fair enough. But the question is, will the Senate be permitted to bring these issues to a final vote on the merits, or will procedural hurdles be erected to prevent democracy from functioning.

So at some point in the next several months, when the three DC Circuit nominees reach the floor, the Senate will have to make another set of choices, just like the ones it will start to face next week on executive nominations. Either accept the obstructionism of a hyper-partisan minority or change the rules to allow the President and the Senate to do the jobs the Constitution demands of them.

For those who care about our democracy and the courts, the choice is easy.

The American people are saying enough is enough. The time for reform is rapidly approaching.

“Juvenile Court” is now in session

The party line from people who work at the Supreme Court, including many of the justices, is that their differences are strictly professional.  The justices behave civilly to each other at all times, and many are good friends.

But it seems at least one Justice, Samuel Alito, didn’t get the memo.  Indeed, a case can be made that Justice Alito’s conduct could have violated the Code of Conduct for United States Judges – if not for the fact that the justices of the Supreme Court are the only federal judges in the U.S. who are exempt from that code.

The Atlantic’s Garrett Epps described the scene last week as the justices read aloud portions of their decisions in two cases involving discrimination and harassment in the workplace:

After both opinions had been read, [Justice Ruth Bader] Ginsburg read aloud a summary of her joint dissent in the two cases.  She critiqued the Vance [v. Ball State University] opinion by laying out a "hypothetical" (clearly drawn from a real case) in which a female worker on a road crew is subjected to humiliations by the "lead worker," who directs the crew's daily operation but cannot fire or demote those working with him. The Vance opinion, she suggested, would leave the female worker without a remedy.

Justice Samuel Alito            Sean Penn in Fast Times
                                       at Ridgemont High 

At this point, Alito pursed his lips, rolled his eyes to the ceiling, and shook his head "no." He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand.  

The offense against decorum is greater when the object of scorn is a woman 17 years his senior, one who is acknowledged even by most of her critics to have spent a distinguished career selflessly pursuing justice in the precise area of her dissent--gender equality in society in general and the workplace in particular.  Her words are as worthy of respectful attention as were his.

I found it as jarring as seeing a Justice blow bubblegum during oral argument.

The behavior would be appalling at any time, but even more so given that one of the cases at issue, Vance v. Ball State University, involved, in part, the protection of workers from boorish behavior by others in the workplace.  Alito’s majority opinion weakened those protections.

        This time Alito’s puerile behavior was directed toward one of the Court’s three woman justices.  The last highly publicized time he behaved this way the behavior was directed toward an African American: the President of the United States.  It was during a State of the Union address, when President Obama dared to “dissent” from the majority ruling in Citizens United.

        Given this track record, we wonder if Alito would have behaved the same way had the dissent in Vance been written by, say, Justice Stephen Breyer.

        All of this reminds us of another judge behaving badly.   One of the reasons a complaint has been filed against Fifth Circuit Court of Appeals Judge Edith Jones is the fact that she told one of her colleagues to “shut up” from the bench.

        This part of the complaint against her cites Canon 1 of the Code of Conduct for United States Judges, which states that “[a] judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.”   The commentary states that “violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.”   One of the factors when determining if disciplinary action is appropriate is “whether there is a pattern of improper activity . . . .”

         The code also bars federal judges from speaking at fundraising events for political groups – as Alito did last year for the Federalist Society.

          But the Code does not apply to Samuel Alito – or any other Justice of the Supreme Court.    We documented that failure, and the consequences, in our video A Question of Integrity: Politics, Ethics and the Supreme Court.  We’ve been campaigning for legislation to require the Supreme Court to follow the code.  Soon, Senators Richard Blumenthal and Chris Murphy and Rep. Louise Slaughter will introduce such legislation.

Another bill also could be helpful in a situation like this.

Because his response to the president was during a State of the Union address, it was seen on national television (indeed, you can see it on the same webpage as Epps’ article). Perhaps Alito felt he could pull the same stunt again because this time, no one outside the courtroom actually would see his antics – they could only be described by those who were there.  That would change, of course, if Supreme Court proceedings were televised.  

Sen. Dick Durbin, D-Ill., a Senator with whom we often agree, and Sen. Charles Grassley, R-Iowa,  a senator with whom we agree less often have introduced legislation to require that the Court’s public sessions be televised.

         “People of reasonable minds may disagree on the proper outcome of … cases …,” Sen. Durbin says, “but we can all agree that the American public deserves the opportunity to see firsthand the arguments and opinions that will shape their society for years to come.”
       
          The public also deserves to see it when one of the nation’s most powerful judges is giving a whole new meaning to the term “juvenile court.”

At hearing for ATF nominee, more Republican obstruction

On Tuesday, the Senate Judiciary Committee held a high-profile hearing on President Obama’s nominee to head the Bureau of Alcohol, Tobacco, Firearms and Explosives, B. Todd Jones.    Jones is an exceptionally qualified nominee.  He currently serves as both the acting director of ATF and as the U.S. Attorney for the District of Minnesota (a position for which he was unanimously approved by the Judiciary Committee in 2009).

B. Todd Jones

Though ATF plays a critical law enforcement role, including involvement in investigating tragedies like the Sandy Hook school shootings, the Boston Marathon bombing, and the industrial explosion in West, Texas, the agency has not had a permanent director since 2006 – that’s when the law was changed to require Senate confirmation That sad reality may continue, as Republican questions at the  hearing suggest that they may continue to obstruct executive nominees as a way to prevent agencies they don’t like from functioning.

Many Republican questions raised tangential concerns about Jones’s record.  For instance, the Committee’s ranking member, Sen. Charles Grassley (R-Iowa)—yes, the very same senator who wants to get rid of three judicial seats on the second most important court in the country, the D.C. Circuit Court of Appeals—pressed Jones to answer for a botched ATF operation, Fast and Furious.  But Jones  actually was brought in to clean up after the fact.

Moreover, just before the hearing ended, there was a telling exchange between Grassley and Sen. Amy Klobuchar (D-Minn.).  Sen. Grassley requested that the hearing record remain open for longer than the normal one week period, based on the expectation that  there were “a lot of things that could come up.”  Senator Klobuchar agreed to keep it open for two weeks.  Sensing dissatisfaction in Grassley’s reaction, she asked, “What would you like?”  Senator Grassley responded, “Until we get done with this whole [thing].”  While the senators’ quick negotiation seemed to be good-spirited, it sounds like  Sen. Grassley has no interest in quickly moving Jones’s nomination to the Senate floor.  This stonewalling is particularly hypocritical in light of repeated Republican statements that we don’t need new gun laws, we just need to “enforce the laws on the books.”  

Of course, Jones is just one of a slew of highly qualified Obama nominees that Republicans so farhave refused to confirm because they disapprove of the organization itself (see EPA Administrator nominee Gina McCarthy, CFPB director nominee Richard Cordray, Labor Secretary nominee Tom Perez, and three NLRB nominees.  If Republicans continue to hold agencies hostage by unfairly blocking confirmations, the Senate majority should revisit reforming Senate rules.

Grassley deserves "A" for creativity, "F" for content on "pre-emptive filibuster" of D.C. Circuit nominees

Sen. Charles Grassley (R-Iowa) deserves “an ‘A’ for creativity but an ‘F’ for content” for his scheme to obstruct future nominees to the nation’s second most important court, Alliance for Justice President Nan Aron said Thursday.

Aron was referring to Grassley’s plan to eliminate three of the four vacant judgeships on the United States Circuit Court of Appeals for the District of Columbia Circuit, a plan he raised again at a Senate Judiciary Committee meeting Thursday.

During that meeting, the committee voted in favor of president Obama’s nomination of Sri Srinivasan to fill one of four vacancies on the 11-judge court.  “But don’t be fooled: Today’s vote by no means shows Republicans’ willingness to stop playing games with the president’s nominees.  During the same meeting, Grassley announced what amounts to a ‘pre-emptive filibuster,' declaring his intent to eliminate the other three vacancies on the D.C. Circuit, effectively blocking any nominees to those seats,” Aron said.

Grassley cited what he claimed is a light workload for the court, based solely on the number of cases handled by each judge.  “That claim is as nonsensical as it is hypocritical,” Aron said.

Patricia Wald

“As the court’s former Chief Judge, Patricia Wald, has written, ‘The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives . . . . These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record – all of which culminates in lengthy, technically intricate legal opinions.’”

Aron also noted that “less than a week ago, at another meeting of the same committee, Sen. Grassley’s close Republican ally, Sen. Jeff Sessions said it was wrong to measure caseload by raw numbers without factoring in complexity.

“The hypocrisy is clear when one looks at Sen. Grassley’s own record.  When the caseload on the court was lighter than it is now, Sen. Grassley supported President George W. Bush’s nominees to fill all eleven seats on the court.

“The current majority on the D.C. Circuit has used its power to issue decisions undermining protections for workers, consumers, and the environment that affect all Americans,” Aron said. “Sen. Grassley and his allies are using every trick in the book to try to keep it that way.”

“If the Republican obsession with obstruction persists,” Aron said, “then the Senate majority must reform Senate rules to allow the will of the majority of Americans to prevail.”

Read more about the D.C. Circuit 
Read more about Grassley’s plan 

AFJ condemns Grassley "court-packing scheme"

The previous post to this blog discusses misleading claims by Sen. Charles Grassley (R-Iowa). Now, he's at it again. Here's AFJ's response:

Legislation sponsored by Sen. Charles Grassley (R-Iowa) to reduce the number of judges on what is widely viewed as the nation’s second most important federal court is a "court-packing scheme" to keep the court in the hands of staunch conservatives, according to Alliance for Justice.

Sen. Charles Grassley (R-Iowa)

Claims by Grassley and others that the court's workload doesn't justify the current number of judges are “false and hypocritical,” said AFJ President Nan Aron.

“There is more than one way to pack a court to suit one’s ideological preferences,” said Aron.  “Now that they are facing increasing pressure to stop blocking President Obama’s nominees, Republicans have come up with a new plan: just get rid of the vacancies.”

At issue is the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit most closely oversees actions of federal regulatory agencies.

“The conservative majority on the D.C. Circuit has used its power to issue decisions undermining protections for workers, consumers, and the environment that affect all Americans,” Aron said. “This activism is possible only because there are four vacancies on the court. 

“When the caseload on the court was lighter than it is now, Sen. Grassley supported President George W. Bush’s nominees to fill all eleven seats on the court.  But now that President Obama has the opportunity to restore balance to the court, Sen. Grassley proposes to get rid of the vacancies by eliminating three of the 11 seats on the court.”

Aron noted that Grassley’s caseload calculations fail to take into account the extraordinary complexity of many cases heard by the D.C. Circuit.

For an explanation of the importance of the D.C. Circuit and examples of its majority’s political agenda, see our briefing paper on the D.C. Circuit.

Senators Grassley and McConnell Make Misleading Statements about Judicial Confirmations

Prior to the Senate's long-overdue confirmation of Third Circuit nominee Patty Shwartz (who waited 550 days for a vote), Senator Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee, made misleading statements about confirmations of judicial nominees.

Senator Grassley

Specifically, he cherry-picked the time period for confirmations in an attempt to evade the fact that President Obama has had far fewer judges confirmed than President George W. Bush at a comparable point in his presidency. He said:

"Today the Senate will consider the 10th judicial nomination this year. . . . At this point in 2005, and that was the beginning of President Bush’s second term, comparable for what we’re talking about for President Obama, the Senate had confirmed zero judicial nominees. Let me repeat, at this point in 2005, the Senate had confirmed not 10 , not 4, not even 1 judicial nominee, so that comes out to be zero."

Minority Leader McConnell

Following the vote, Minority Leader McConnell (R-KY) repeated the statement almost verbatim:

"We just today confirmed the 10th judicial nomination of President Obama's second term. Today. The 10th judicial nomination of President Obama's second term. At this point in President Bush's second term, he got zero judges. None."

Ten confirmations compared with zero confirmations sounds bad. But 202 confirmations compared with 181 confirmations sounds even worse—and that's the actual number of Bush and Obama confirmations at a comparable point in their presidencies. That comes out to 21 fewer confirmations for Obama.

Grassley and McConnell’s larger point about fairness would be even stronger if the Senate had confirmed 96% of President Obama’s district court nominees—the percentage of President Bush’s district court nominees who had been confirmed at a comparable point. Instead, the Senate’s confirmed only 85% of President Obama’s nominees. Had Grassley, McConnell, and their colleagues allowed Obama to match Bush’s record on this front, the Senate would have confirmed another 19 judges, making the two presidents’ overall confirmation numbers almost exactly even.

As it happens, there are exactly 19 district court nominees pending in the Senate right now. Unfortunately, Republicans have delayed the 13 nominees on the Senate floor, who have been waiting for over a month, and 6 nominees who are pending in committee. Given the Senators’ evident concern with fairness, you would think that they would at least allow immediate votes for the 13 nominees pending on the floor, all but one of whom were reported out of the Judiciary Committee unanimously. You would think.

Grassley Intentionally Misstates Judicial Confirmation Record to Whitewash Obstructionism

Senator Grassley

Senator Charles Grassley (R-Iowa) recently responded to a letter sent to him from 16 national and Iowa groups criticizing him for unnecessary delays in confirming judicial nominees. In his response Grassley claimed that:

"[F]or the four years of this administration, we approved 160 nominations, and during the same period of time in the last Bush administration, there were 120 nominations."

This statement is both wrong and intentionally misleading.

First off, Grassley is comparing the first four years of the Obama Administration to the second four years of the Bush Administration. This is not “the same period of time.” Second, this is particularly misleading because Bush had a comparatively huge number of confirmations in his first term—202 in fact (see chart below). During Bush’s second term, there simply were not that many vacancies to fill.

With his statistical slight-of-hand, Grassley is trying both to minimize his—and his fellow Republicans’— obstruction of President Obama’s nominees during the last four years and make himself look reasonable!

You might expect more transparency and honesty from the ranking member of the venerable Senate Judiciary Committee. Instead, it seems, we’re getting one more attempt to mislead the public and obstruct nominees going forward. Iowans—and Americans—deserve better.

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For Senator Grassley’s information, here are the facts:

Senate Judiciary Committee holds hearings on five judicial nominees, two to fill judicial emergencies

The Senate Judiciary Committee held hearings today (September 19) on the nominations of Katherine Polk Failla, to the Southern District of New York; Pamela Ki Mai Chen, to the Eastern District of New York; Troy L. Nunley, to the Eastern District of California; Sheri Polster Chappell, to the Middle District of Florida; and Mark A. Barnett, the Court of International Trade. The confirmations of Chappell and Nunley would each fill a judicial emergency vacancy, particularly Nunley’s nomination to the Eastern District of California, which faces the greatest backlog of filings in the country.

Senator Chuck Schumer (D-NY) chaired the hearing, while Senators Chuck Grassley (R-IA), Al Franken (D-MN) and Mike Lee (R-UT), Richard Blumenthal (D-CT), and Dianne Feinstein (D-CA) were also in attendance. Senator Bill Nelson introduced Chappell to the Committee, while Senator Feinstein introduced Nunley and Senator Schumer introduced Chen, Failla, and Barnett.

Each nominee spoke on the importance of judicial modesty and following precedent. All of the nominees also expressed agreement that some of the most important values of a judge are fairness, willingness to listen to and understand the parties, keeping an open mind, and maintaining the transparency and legitimacy of the bench. The nominees come from a diverse range of backgrounds, including prosecutors’ offices, civil rights enforcement, private practice, and state court judgeships.

Expedient action on nominees is especially important with the Senate session set to come to a close in the coming days. There are currently 10 nominees pending in the Senate Judiciary Committee, including 8 district court and 2 circuit court nominees, and 21 nominees pending on the Senate floor, including 17 district court and 4 circuit court nominees. If the Senate does not act soon to confirm the slew of nominees awaiting votes, the federal courts will go into the November election with 94 total vacancies, 33 of which are judicial emergencies.

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

Confirm Paul Watford to the Ninth Circuit!

UPDATE: This alert is no longer active. Paul Watford was confirmed by a vote of 61-34. All Senate Democrats voted for confirmation, as did Republican Senators Lamar Alexander, Scott Brown, Susan Collins, Lindsay Graham, Dick Lugar, John McCain, Lisa Murkowski, and Olympia Snowe.

Paul Watford was nominated last fall to an "emergency" vacancy on the Ninth Circuit Court of Appeals. An uncontroversial, mainstream candidate, he has attracted support from across the political spectrum and been given the highest possible qualification rating by the nonpartisan American Bar Association.

Some Republicans have spoken out strongly against Watford. For example, Chuck Grassley of Iowa says he opposes Watford because he served as co-counsel on a case and on an amicus brief challenging Arizona's controversial immigration law. Grassley and others had even gone so far as to begin a filibuster.

Of course, it's not the first time Republicans have seized upon flimsy excuses to mount last-ditch opposition against well-qualified nominees.

The opposition to those was almost certainly designed merely to drag out the process and make the president look bad. And now the same thing is happening to Paul Watford.

And while that partisan game plays out on the Senate floor, our federal courts remain critically understaffed.

On issues ranging from employment discrimination to health care, federal courts play an increasingly important role in the lives of hardworking Americans. But with caseloads soaring and the nominations process bogged down in partisan bickering, too many Americans are being forced to wait too long for their day in court.

Tell your senators to confirm Paul Watford to the Ninth Circuit, where new judges are badly needed.

Click here to take action!

Five Judicial Nominees Reported Out of Committee

This morning the Senate Judiciary Committee reported five judicial nominees to the Senate floor:

• William Kayatta, Jr., nominated to the First Circuit Court of Appeals
• John Fowlkes, Jr., nominated to the Western District of Tennessee
• Kevin McNulty, nominated to the District of New Jersey
• Michael Shipp, nominated to the District of New Jersey
• Stephanie Rose, nominated to the Southern District of Iowa

The nominees were reported on a voice vote; Ranking Member Chuck Grassley (R-IA) stated that Senator Jeff Sessions (R-AL), who did not attend the meeting, wished to go on record with a vote of “no” against the nomination of Kayatta. Senator Mike Lee (R-UT) voted “no” on all five nominees, continuing to carry out his threat to oppose every single one of the president’s nominees regardless of merit or circumstance in retaliation for the recess appointments of Richard Cordray to head the Consumer Financial Protection Bureau and several appointments to serve on the National Labor Relations Board.

Senator Chuck Schumer (D-NY) voted “present” on McNulty, citing a personal conflict of interest (McNulty is the senator’s brother-in-law).

All of the Democratic committee members were present for the vote; the only Republican members who attended this regularly scheduled weekly meeting were Senators Grassley and Lee.

Three additional District Court nominees were on the agenda and could have been reported out to the Senate floor, but Senator Grassley stated that the Republican members were going to take advantage of a committee rule allowing nominees to be automatically held over without cause until the next meeting. This has been a persistent delaying tactic of the Republican members, who have invoked the automatic hold-over rule for all but one of the president’s judicial nominees during this Congress in order to drag out the confirmation process as long as possible. As a result, the committee has to wait until its next meeting to consider the nominations of Michael Shea to the District of Connecticut, Gonzalo Curiel to the Southern District of California (an emergency vacancy), and Robert Shelby to the District of Utah.

Today’s action leaves 11 nominees pending in committee and increases the number of nominees awaiting Senate confirmation votes to 22.  Under the March 14 deal on confirmations reached by Senate Majority Leader Harry Reid (D-NV) and Minority Leader Senator Mitch McConnell (R-KY), six of these should receive their votes by May 7, leaving at least 16 seats vacant because of partisan delay if the knee-jerk obstruction of judicial nominees continues.

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

Slow-Walking the Nominations Process in Committee

The Judiciary Committee reported three nominees to the Senate floor at its Executive Meeting Thursday morning.  Committee votes on Richard Taranto to fill an appellate seat on the Federal Circuit and Robin Rosenbaum to fill a seat in the Southern District of Florida were supposed to be taken on March 15.  However, due to the failure of sufficient committee members to appear on that day (seven of the Democratic committee members were present, but Ranking Member Senator Chuck Grassley (R-IA) was the only Republican to appear), the Committee was two members short of the quorum required to do business. 

While they were still waiting to see if more members would show up, Senator Grassley noted that if a quorum was established he would be requesting that consideration of Taranto and Rosenbaum be delayed for a week.  Chairman Patrick Leahy (D-VT) noted that he and Senator Grassley had discussed establishing a process whereby business meetings held for the sole purpose of invoking the extension of consideration of nominees could take place without a quorum, but that other Republican members of the Committee had objected.  

Before recessing the meeting where no business had been able to take place, Senator Leahy stated, “The Republicans requested this meeting, even though it would be a pro forma type of thing.  They seem to be boycotting the meeting.” 

The same thing happened at the regularly scheduled business meeting of the Judiciary Committee the following week, March 22, when Taranto, Rosenbaum, and Gershwin Drain, nominee to the District Court of the Eastern District of Michigan, were scheduled to be considered.  Eight of the Democratic Committee members sat and waited; they were two members short of a quorum.  Twenty-six minutes after the meeting was scheduled to begin, Senator Grassley arrived, but no other Republican members came.  

When Senator Leahy again noted that it appeared that the Republican members were boycotting the committee, Senator Grassley responded that he was not aware of a boycott attempt, but acknowledged that it would be unlikely that any other member of his caucus would appear and allow the committee to conduct its business.  Senator Leahy recessed the committee after stating that he would convene it later that afternoon off of the Senate floor when a series of votes were scheduled to take place.  That meeting did occur, and the Republican committee members invoked the automatic week’s extension, with the result that no action to move the nominations process forward occurred.

A quorum did appear on March 29.  Taranto and Rosenbaum were reported out of Committee on voice votes with only Senator Lee opposing them.  A roll call vote was held on Drain, resulting in a party-line vote of 10-8.  Five other listed nominees – one to a Circuit Court seat and four to District Court seats – were held over.  Since the Senate is leaving on recess after this week, these five judges – William Kayatta, Jr. to the First Circuit, John Fowlkes, Jr. to the Western District of Tennessee, and Kevin McNulty and Michael Shipp to the District of New Jersey – will not receive consideration by the Committee to be advanced to the Senate floor for confirmation until April 19 at the earliest.

In addition to many other tactics to delay, slow-walk, and obstruct the nominations process – tactics that range from refusing to review background materials in a timely manner, to failing to return blue slips, and to filibustering consensus nominees – Republicans in the Senate are also shirking their Constitutional duty to advise and consent by refusing to show up and let the Committee conduct its business.  While they are playing the politics of obstruction, justice for millions of ordinary people is being delayed and denied due to a judicial vacancy crisis that has 1 in 10 seats on the federal bench empty.  For each day that the nominations process is stalled in the Senate, Americans across the country are prevented from having their day in court.

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

This Week in Judicial Nominations

This week, the Senate incrementally moved forward with its responsibility of confirming appointees to the federal bench in the midst of a judicial vacancy crisis that has left 1 in 10 seats empty. Three District Court nominees had their Senate Judiciary hearings, three were reported out of committee to await their confirmation votes on the Senate floor, and two were confirmed as part of the deal on confirmation votes struck earlier this month between Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY).

On Wednesday, the Senate voted to confirm United States District Court nominees Miranda Du to serve the District of Nevada by a vote of 59-39 and Susie Morgan to serve the Eastern District of Louisiana by a vote of 96-1.  It took 147 days for Du, and 140 days for Morgan, to receive their confirmation votes after being reported out of the Judiciary Committee.  Two hundred and forty days passed from the date of Du’s nomination to her confirmation to fill an emergency judicial vacancy; the time was even longer for Morgan, who was in the Senate process for 296 days.

Earlier that day, hearings were held for District Court nominees Michael Shea, Gonzalo Curiel, and Robert Shelby nominated to the District of Connecticut, the Southern District of California, and the District of Utah, respectively.  The hearing was chaired by Senator Richard Blumenthal (D-CT); Ranking Member Senator Chuck Grassley (R-IA) and Senator Mike Lee (R-UT) were also in attendance.  President Obama appointed Curiel and Shelby on November 10 and November 30 last year, respectively; Shea was appointed on February 2 of this year.  The hearing was non-controversial.  Now, they await consideration by the Committee and a vote to report them to the Senate floor, where the waiting process for a confirmation vote will begin.  While Shea, who was nominated on February 2 of this year, had to wait 56 days from nomination to the time of his hearing, both Curiel and Shelby had to wait twice as long to take the next step forward in the confirmation process.  Curiel, nominated on November 10, 2011, waited 140 days for his hearing.  Shelby, nominated on November 30, waited 120 days.

The Judiciary Committee reported three nominees – Richard Taranto, Robin Rosenbaum, and Gershwin Drain – to the Senate floor on Thursday.  They join 15 other judicial nominees who are awaiting confirmation by the Senate before they can assume their seats and being to serve people by dispensing justice in our nation’s federal court system.  As the Senate is leaving town for a two-week recess, no further action will take place to confirm judges until April 16, when a vote on the nomination of Stephanie Dawn Thacker to the Fourth Circuit Court of Appeals is scheduled to take place.

By the Numbers
3 District Court nominees had hearings before the Senate Judiciary Committee

3 nominees reported out of Committee to the Senate floor: 1 Circuit Court nominee, 2 District Court nominees
2 District Court nominees confirmed

The week comes to a close with:

97 total judicial vacancies, including 33 judicial emergency vacancies
80 current vacancies; 17 future vacancies
17 circuit court vacancies; 80 district court vacancies
34 pending nominees; 63 vacancies without nominees
16 nominees pending in committee; 18 pending in the Senate

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