Analysis Law and Policy

Administration’s Renewed Focus on Filling Federal Court Vacancies Reveals Mixed Bag of Nominees

Jessica Mason Pieklo

Just after the election President Obama moved to fill seven federal court vacancies. Almost all the nominees are good news for civil rights advocates.

Federal judicial vacancies reached critical levels during President Barack Obama’s first term, but there’s reason to think that is starting to change. Just after the election President Obama nominated seven individuals to fill District Court judicial vacancies, including two seats in the nation’s busiest court in Manhattan. It was a bold move that went largely unnoticed in the press but could have significant consequences for the future of the federal judiciary. And with more than 100 vacancies on the federal bench nationwide, the move couldn’t come soon enough.

Two of the seven nominees, former FBI general counsel Valerie Caproni and New York state Judge Analisa Torres, were nominated to fill vacancies in the Southern District of New York in Manhattan, one of the busiest federal courts in the country where a significant degree of anti-terrorism and anti-corporate fraud litigation occurs. While both women bring significant experience with them, Caproni’s nomination is one that deserves a second look.

Caproni served as the FBI’s general counsel from 2003 to 2011 where she became embroiled in the FBI’s use of “exigent letters” to try and legally justify FBI domestic surveillance efforts including warrantless wiretaps of US civilians. Caproni left the FBI to become deputy general counsel at Northrop Grumman Corporation, a defense systems manufacturer. Caproni also worked in other enforcement roles, including time at the U.S. Securities and Exchange Commission and the U.S. Attorney’s office in Brooklyn. She also did stints at Cravath, Swaine & Moore and Simpson Thacher & Bartlett, white-shoe law firms known for their cozy relationships with the banking and finance industries.

Given the fact that so much terrorism-related litigation and Wall Street fraud litigation originates in the Southern District Court of New York it’s hard to see how Caproni’s presence on the federal bench would be a good thing. She is, in short, representative of the worst of the Bush-era administrations and policies that the Obama administration just can’t seem to shake and her nomination to the federal bench is, to put it mildly, a disappointment.

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Thankfully Torres offers a much different picture, as are the remaining nominees. Torres is currently a state court judge, but previously worked as a teacher. She is a former City Planning Commissioner and currently serves as the Chair of the  Women’s Housing and Economic Development Corp. Given the fact that district court judges handle the trials and are in many ways the front-lines of the federal bench Torres involvement in city management and her time as a state court judge will serve her well should she be confirmed.

Colorado federal public defender Raymond P. Moore was nominated to fill a vacancy in the U.S. District Court in Colorado. Moore’s career includes a significant amount of time as a public defender. This background in the public defenders office is refreshing to see in a federal judiciary dominated by former prosecutors. Moore isn’t the only public defender nominated for the federal bench. Florida Circuit Court Judge William L. Thomas was nominated to the United States District Court for the Southern District of Florida. Before becoming a judge he served as an Assistant Federal Public Defender but began his legal career as an Assistant Public Defender at the Miami-Dade County Public Defender’s Office in 1994. 

Derrick Kahala Watson, if confirmed, would be the only person of Native Hawaiian ancestry on the federal bench. Watson is currently an assistant U.S. attorney and chief of the civil division and is one of two federal prosecutors nominated to the bench. New Mexico U.S. Attorney Kenneth Gonzales was also nominated. Gonzales spent 11 years with the New Mexico U.S. Attorney’s office before his appointment to the head position. In that capacity, he serves on the Attorney General Advisory Committee’s subcommittees on Native American Issues and Southwest Border and Immigration Issues, and would be a welcome addition to a federal bench that will be dealing with the rapidly changing demographics of the Southwest.

Finally, President Obama nominated Los Angeles County Superior Court Judge Beverly Reid O’Connell to the U.S. District Court in Los Angeles. O’Connell has been a Superior Court judge since 2005. Prior the becoming a judge she was a federal prosecutor in Los Angeles and worked for a time in the organized crime and terrorism section of the U.S. Attorneys office. 

As we’ve seen with President Obama’s nominations during his first term, this is a diverse and multi-talented cohort of federal judicial nominees. Many of the nominees built careers serving the most vulnerable, an important qualification as poverty is increasingly a status offense. And while it’s impossible to predict how any of these judges would rule on reproductive justice issues, we can be almost certain they are more willing to protect a woman’s fundamental right to privacy from government overreach than any nominees Mitt Romney would have offered up.

Commentary Law and Policy

Republicans Make History in Obstructing Merrick Garland for Supreme Court

Jessica Mason Pieklo

Merrick Garland is now officially the longest Supreme Court nominee to go without confirmation hearings or a vote in U.S. history.

Merrick Garland, President Obama’s selection to replace Justice Antonin Scalia, now has the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment, thanks to Senate Republicans’ refusal to do their jobs.

I can’t say it any differently. This has been an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us. And after nearly a decade of unprecedented—and I mean unprecedentedobstruction of President Obama’s judicial nominees writ large, there’s no flowery language that can capture how our federal courts’ slow burn on the the Republicans’ watch has now caught full fire with the fight over Garland’s nomination.

Instead what we have are dry, hard facts. A century ago, Justice Louis Brandeis was forced to wait 125 days before his confirmation to become the first Jewish justice on the Court. Justice Scalia died on February 13 of this year. President Obama nominated Garland on March 16. Wednesday marked 126 days of zero Senate action on that nomination.

And since Congress is now on recess, that won’t be changing anytime soon.

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It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit. And here’s the kicker: None of us should be surprised.

President Obama had no sooner walked off the Rose Garden lawn after announcing Garland’s nomination in March than Senate Republicans announced their plan to sit on it until after the presidential election. Eight months away. In November.

Senate Republicans’ objection isn’t to Garland himself. He’s a moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process. As compared with both of President Obama’s other appointments, Justices Sonia Sotomayor and Elena Kagan, Garland is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness. I mean, who would have thought that of all the nominees Republicans were going to double-down their obstruction efforts on, it would be Justice Dad?

Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.

Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority. It’s an investment that has largely paid off. Federal circuit appeals courts like the Fifth, Sixth, Eighth, and Tenth issue reliably conservative opinions regularly, thanks to aggressive appointments by conservatives during the Reagan and Bush years.

Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.

It’s easy to see why conservatives would want to keep their grip on the federal judiciary given the kinds of issues before it: These are the courts that hear immigration and detention cases, challenges to abortion restrictions, employment discrimination cases, as well as challenges to voting rights restrictions. Just to name a few. But as long as there are no judges, the people being directly affected are left in limbo as their cases drag on and on and on.

Our federal courts of appeals are no better. Nine federal appellate seats sit vacant, five in jurisdictions deemed judicial emergencies.

These vacancies have nominees. Senate Republicans just refuse to confirm them.

And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.

The refusal to vote on Garland’s nomination is the most visible example of the conservatives’ drive to maintain control over the federal courts, but it’s hardly their most blatant display of sheer partisanship. I’m guessing that is yet to come when, should they lose the presidential election, Senate Republicans face the choice of quickly confirming Garland or continuing their stand-off indefinitely. And given what we’ve seen of the election cycle so far, do we really think Senate Republicans are going to suddenly grow up and do their jobs? I hate to say it, folks, but Merrick Garland isn’t getting confirmed anytime soon.

Roundups Law and Policy

Gavel Drop: Ruth Bader Ginsburg Hints at More Supreme Court Retirements

Imani Gandy & Jessica Mason Pieklo

In a recent interview, Supreme Court Justice Ruth Bader Ginsburg dishes on the last Supreme Court term and hints the next president may have more than one justice to appoint.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Ruth Bader Ginsburg suggests the next president is going to have a couple of U.S. Supreme Court nominations to make, which means the Court could be effectively up for grabs depending on this election’s outcome.

This summer, the Supreme Court ordered the Obama administration and religiously affiliated nonprofits who object to providing contraception to try and find some kind of compromise. While they hammer one out, a University of Notre Dame student has asked a federal appeals court to let her join in the litigation, to fight the university’s stance of trying to deny access to contraception coverage.

Anti-choice protesters will be descending on Wichita, Kansas, this week to commemorate the 25th anniversary of the Summer of Mercy clinic sieges.

A state judge dismissed a lawsuit filed by Kentucky Gov. Matt Bevin (R) against Planned Parenthood of Indiana and Kentucky for purportedly performing abortions without license.

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Florida officials have not yet appealed a federal district court ruling blocking a law that would have prevented Medicaid funds from going to Planned Parenthood reproductive health care centers. The law would also mandate a state regulator review of patient records from half of the approximately 70,000 abortions in the state each year.

An Ohio appeals court ruled a Cleveland abortion clinic can move forward with its lawsuit challenging requirements that prohibit public hospitals from entering into transfer agreements with clinics, along with another requirement that mandates providers to check for a fetal heartbeat before performing an abortion.

Attorneys from the American Civil Liberties Union (ACLU) sued to block an Indiana law requiring that a patient getting an abortion must have an ultrasound 18 hours before the procedure.

Meanwhile, abortion rights supporters in Wisconsin are urging lawmakers to repeal the state’s admitting privileges requirement.

Anti-choice lawmakers in Texas plan to try to require aborted fetuses to be buried or cremated in an attempt to add additional emotional burden and administrative expense to the procedure.

Free speech for whom, exactly? The man who posted the video of the police killing of Alton Sterling has been reportedly arrested on charges of assault and battery.