AFJ releases new report on the Supreme Court's 2011-12 term

Photo: Mike Sheridan

The 2011-12 U.S. Supreme Court term will be best remembered for the Court’s landmark ruling on the Patient Protection and Affordable Care Act (“ACA”), in which it upheld the constitutionality of the Act but opened the door to placing future limits on Congress’ ability to regulate interstate commerce and to impose conditions on federal grants to the states. That decision, however, was far from the only ruling of major significance this term. The Court issued a number of important decisions that reflect its continuing bias in favor of corporate interests and against the rights of everyday Americans, demonstrating that Chief Justice John Roberts’ One-Percent Court was once again open for business.

Click here to download the full 2011-12 End of Term report.

Judicial Obstruction During President Obama's First Two Years: Updated Reports

As a service to those writing about the crisis of judicial nominations during the final weeks of the 2010 lame-duck Congress, Alliance for Justice is reissuing and updating several recent reports on the record of Republican obstruction and the increasingly dire number of judicial emergencies plaguing the federal courts.

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Judicial Obstruction During President Obama’s First Two Years:
A Compilation of Alliance for Justice Reports

During the Obama Administration’s first two years, Republicans in the Senate have implemented a strategy to delay and obstruct his judicial nominations to the Courts of Appeals and District Courts, contributing to the severe staffing crisis in the federal courts. The Republican tactics are no mystery. As Minority Leader Mitch McConnell (R-Ky.) has told the New York Times, “I am amused with [Democrats’] comments about obstructionism. . . . I wish we had been able to obstruct more.” (1)

The level of Republican obstructionism during the first two years of the Obama Presidency is unprecedented, as demonstrated in the attached Alliance for Justice reports. As of November 23:

• The rate at which President Obama’s judicial nominees have been confirmed is significantly lower than it was for the five previous presidents, both in aggregate numbers (41 judges) and in the percentage confirmed (­43% of nominations).
• President Obama has seen a smaller percentage of his nominees confirmed at this point in his presidency than any president in American history.
• During President Obama’s first two years, the number of judicial vacancies has nearly doubled, from 55 to 108, whereas under Presidents Bush and Clinton, the number of vacancies declined from 80 to 59 and from 107 to 68, respectively, in the same period.
• The political motivation for the Republicans’ tactics of delay and obstruction are made clear by the fact that 16 of the 23 nominees currently being blocked on the Senate floor were reported out of the Senate Judiciary Committee on unanimous, bipartisan votes, and another sailed through with only one Republican in opposition.
• The number of “judicial emergencies,” as defined by the Administrative Office of the U.S. Courts, has dramatically risen from 20 at the beginning of the Obama term to 50. Thirty states face the situation where there are not enough sitting judges to handle the case load, causing serious delays and jeopardizing justice for plaintiffs and defendants. Many of those states have Republican Senators.
• Of the 23 nominees who have been blocked from receiving final floor votes after being approved by the Judiciary Committee, 11 would fill seats considered to be “judicial emergencies.” Overall, there are 54 nominees pending, 31 of whom would fill seats considered judicial emergencies. (2)
• Senate Republicans have placed secret holds on each of President Obama’s judicial nominees currently on the Senate floor, even on those that are uncontroversial and have the support of Republican home-state senators. Secret holds have been repeatedly placed on all of President Obama’s nominees to obstruct the confirmation process. (3)
• President Obama’s nominees are the most diverse in American history. In fact, 44% of his nominees are female, doubling the rate of women appointed in the Bush Administration, and 42% are African-American, Hispanic, or Asian-American, including Goodwin Liu and Ed Chen, both of whom were rated unanimously well-qualified by the American Bar Association and who would serve on courts where Asian Americans have been historically underrepresented.. Only 18% of George Bush’s appointees were non-white.
• At the end of the Bush Administration, 59.5% of all active federal judges had been appointed by Republicans, but even after almost two years of a Democratic administration, Republican appointees still accounted for ­58.7% of judgeships, reflecting the glacially slow pace of confirmations in President Obama’s first term and exposing the goal of Republican tactics.

(1) Carl Hulse, No Reveling for Democrats, Despite Achievements, N.Y. Times, Aug. 14, 2010, available at
http://www.nytimes.com/2010/08/15/us/politics/15memo.html?_r=2&scp=5&sq=mitch%20mcconnell&st=cse.

(2) The Senate Judiciary Committee has scheduled an Executive Business Meeting for December 1, 2010, at which the Committee could report an additional 12 nominees to the floor.

(3) For example, on February 5, 2010 Senator Sessions placed a secret hold on all of Obama’s judicial nominees, http://thehill.com/blogs/blog-briefing-room/news/79923-reports-shelby-places-blanket-hold-on-obama-nominees. In June, 2010, NPR learned that secret holds again blocked all Obama nominees, http://www.npr.org/templates/story/story.php?storyId=126528338.

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This information, and more, can be found in the following Alliance for Justice reports, all but the last of which have been updated through today’s date, and which are available online:

• Judicial Nominations in the Clinton, Bush, and Obama Administrations: Which One of These is Not Like the Others?
  
• Judicial Selection Snapshot
  
• Judicial Emergencies Report
  
• Judicial Nominees Being Blocked by Republican Senators
  
• The State of the Judiciary: The Obama Administration: The First 20 Months
  

Dramatic Disparity in Record of Senate Action on Judicial Nominees for Clinton, Bush, and Obama in First Two Years

As we reach the two-year mark of his presidency, President Barack Obama has faced unprecedented obstruction of his judicial nominees in the U.S. Senate and has fared far worse than his immediate predecessors both in having nominees approved and in relieving the federal courts of the burden of “judicial emergencies.”

With the clock ticking in the current lame-duck session of Congress, AFJ has released a report entitled, Judicial Nominations in the Clinton, Bush, and Obama Administrations: Which One of These is Not Like the Others? The conclusions are stark:

• The number of vacancies in the federal judiciary has nearly doubled, from 55 to 107, since President Obama took office.


• Officially designated “judicial emergencies” have risen from 20 to 50, affecting courts in 30 states.


• Both Presidents George W. Bush and Bill Clinton had large numbers of vacancies and emergencies in their administrations, but were able to significantly reduce them by the end of their second year in office. In contrast, due to Republican tactics of obstruction during the first two years of the Obama Administration, both vacancies and emergencies have dramatically increased since January 2009. The federal courts are in worse shape than when the Obama term started. The opposite was true for Clinton and Bush.


• Precedent exists to use the lame duck session to approve large numbers of judicial nominees. In the 2002 lame-duck Congress, a closely divided Senate confirmed 20 of President Bush’s judges, all but one on a voice vote.

AFJ believes there is no excuse for not using the remainder of this congressional term to vote on President Obama’s nominees to the federal bench. The Senate’s constitutional obligation to fully staff the courts does not stop just because the calendar is crowded and time is short. The final votes on all the nominees currently being held hostage by Republican obstruction could be dealt with expeditiously, exactly as they were in 2002 for President Bush’s nominees in similar circumstances. The ability of our courts to deliver justice to the American people is at stake, and there is no more time to waste.

A copy of the report can be found here: http://www.afj.org/judicial-selection/obama-judicial-nominations-obstruction-vs-recent-presidents.pdf.