News Law and Policy

2014 Starts With a Flurry of Judicial Nominations and Threats of More Delays

Jessica Mason Pieklo

Despite a change to Senate rules designed to speed along judicial nominations, Republicans appear ready to pick up 2014 where they left off 2013: obstructing nominees.

Despite a change in the Senate rules designed to bring an end to years of Republican obstruction of judicial nominees, the fight over the federal courts may be far from over. This week, President Obama renominated 54 judicial nominees whose nominations Republicans had stalled and sent back to the White House last year by refusing to hold hearings on all but one: Judge Robert Wilkins, who was nominated to the D.C. Circuit and could get a Senate confirmation vote any day now.

The recent Senate rule change, to prevent the filibuster of any but the highest level executive appointments, prevents Republicans in the body from directly blocking or filibustering this latest rounds of nominees. But nothing in the rule change prevents Republicans from dragging their feet and slowing down the confirmation process by refusing to attend committee meetings or employing other procedural tactics for delay.

Responding to the nominations, Marge Baker, executive vice president of People for the American Way, said in a statement, “It is encouraging that the White House has taken the earliest possible opportunity to put these 54 nominees back on the path to Senate confirmation. This is an especially urgent matter given that 22 of these nominees would fill officially-designated judicial emergencies.”

Perhaps seeking to quell some of the furor in the Senate Judiciary Committee and avoid a future battle over a different Senate tradition, President Obama did not renominate William Thomas. Thomas, a nominee for the U.S. District Court for the Southern District of Florida, was single-handedly blocked by Sen. Marco Rubio (R-FL), who used what is known as a “blue slip,” a process that gives senators de facto veto power over nominees from their home state. If confirmed, Thomas would have been the first Black, openly gay federal trial judge. Senate Democrats accused Rubio of abusing the blue slip tradition in blocking Thomas. Judiciary Committee Chairman Sen. Patrick Leahy (D-VT) said in December in remarks on the Senate floor that Democrats were willing to look at changing the blue slip tradition as well: “I have heard, however, some suggestion that Republicans will now seek to delay judicial nominations by exploiting a Senate tradition known as the blue slip. I will continue to honor the blue slip policy as it currently stands, but I hope that Republicans will not abuse this tradition and force me to reconsider.”

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Failing to renominate Thomas may not be the only concession to Republicans on judicial nominations. Among those renominated by the president is a controversial slate of nominees from Georgia who have drawn heavy criticism from civil rights leaders and Democrats, including calls to pull their nominations. They include Mark Cohen, an attorney who defended Georgia’s voter identification law in court, and Michael Boggs, who as a Georgia legislator voted to keep the Confederate symbol in the state flag. Cohen and Boggs’ nominations are reportedly part of a deal the Obama administration struck with Georgia Republican senators last September to try and get nominations moving. In exchange for their nominations, Republicans agreed to stop blocking the nomination of Jill Pryor to the 11th Circuit Court of Appeals.

The Senate Judiciary Committee has meetings on judicial nominees scheduled this week and is currently slated to consider 29 candidates, including five circuit seats and 24 district court seats. It’s the first time the committee will meet since the rule change, which Republicans adamantly opposed, and could reveal how much further Republicans intend to push the fight over the federal courts.

Analysis Abortion

‘Obstruction on Steroids’: Republicans Use Scalia’s Death to Try and Shut Down the Supreme Court

Jessica Mason Pieklo

Congressional Republicans’ promise to not even consider a replacement nominee until after the 2016 presidential election has highlighted a disturbing trend in American politics.

Read more of our articles on Justice Antonin Scalia’s potential successor here.

In the days following Supreme Court Justice Antonin Scalia’s death, congressional Republicans’ promise to not even consider a replacement nominee until after the 2016 presidential election has highlighted a disturbing trend in American politics. Although Republicans have blocked President Obama’s political agenda since the moment he took the oath of office, nowhere has this obstruction been more egregious than the federal judiciary.

While the chest-thumping from Republicans over a replacement for Justice Scalia has gathered the most press attention, the reality is our entire federal judiciary is in crisis thanks to Republican obstructionist tactics. Since President Obama took office, Republicans on the judiciary committee have consistently dragged out the confirmation process for or rejected outright his nominations.

The immediate result has been to slow down the federal courts to the point of crisis.

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There are currently 75 vacancies on the lower courts. Thirty-one of those vacancies are considered to be “judicial emergencies,” which means there are not simply enough judges on those courts to hear the number of cases being filed.

The number of judicial emergencies, for that matter, has increased by 158 percent since January 2015. There are also seven known future vacancies where judges have given their notice they will step down. Not surprisingly, most of these vacancies are clustered in conservative judicial districts, where an Obama appointment could potentially moderate the bench.

“In a number of situations we have very qualified nominees for circuit court judgeships, many are historic nominees,” explained Marge Baker, executive vice president of the progressive advocacy organization People for the American Way, in an interview with Rewire. “In Alabama we have what would be the first African American from Alabama to sit on the Eleventh Circuit. That would be huge. In Indiana it would be the first African-American woman from Indiana to sit on the Seventh Circuit. These are historic nominations of eminently qualified people and there’s absolutely no reason why they shouldn’t be filled.”

Compare this situation with that of the final two years of George W. Bush’s presidency, when Democrats took over the Senate after the 2006 midterm elections. In 2007, the Democratic Senate confirmed 40 of President Bush’s circuit and district court nominees. That was just in the Democrats’ first year as the majority. By the end of 2008, the Democratic-controlled Senate had confirmed a total of 68 judicial nominees.

By contrast, the newly Republican-controlled Senate confirmed 11 judges in 2015.

“This is Republican senators in this country saying they are not going to do their job, and it’s a job the Constitution requires them to do,” Baker said. “It’s an explosion of obstruction that we are seeing.”

And it’s an explosion of obstruction that is only getting amplified by the electoral cycle. In January 2016, the conservative pressure group Heritage Action threatened legislators with bad legislative scorecards, should they vote to confirm any more of the president’s judicial nominees.

For those nominees that do eventually get a vote, the confirmation process has been inexplicably delayed, with many nominees waiting more than 100 days for a confirmation vote. In almost every case, the nominee had strong bipartisan support and no opposition. Republicans just refused to act.

If the effect of Republican obstruction has been to bring the lower courts to a near standstill, their current strategy of blocking any Supreme Court nominee until after the election could bring the country’s highest court to a full stop. Consider it another form of government shutdown by the GOP.

“If the Republicans succeed in what they want to do, they are going to be leaving the Court without a ninth justice for at least a year and a half, or close to two terms of its work,” Baker said.

“It leaves you speechless, in terms of how do you deal with this level of disregard for the constitutional duty these senators were elected to perform?” she asked.

“On the one hand, this is part and parcel of the general obstruction the president has hit since the moment he took office,” Baker said. “What’s different and even more extreme [with the Supreme Court nomination] is there is no precedent for the party in the majority saying that they will not consider any nominee for the Supreme Court because it is the last year of the president’s term.”

“It is beyond the same-old thing. It is a crisis of constitutional proportions,” Baker continued.

So far, President Obama has shown little signs he’s going to play along with Republicans and hold a nomination back. And recent polling suggests the American public is also growing tired of the political posturing by conservatives around a replacement for Justice Scalia. The question for congressional Republicans, though, is do they care?

“There isn’t anything more sacred than what the Senate needs to do with regard to judicial nominations,” said Baker.

“This is obstruction on steroids.”

Commentary Politics

Trial Balloons and Hot Air: Don’t Let Biden and Schumer Fool You on ‘Mainstream’ SCOTUS Nominees

Jodi Jacobson

Both Schumer and Biden seem to agree that what we need to replace deceased Supreme Court Justice Antonin Scalia is a "mainstream" nominee for the Court. I call foul.

Read more of our articles on Justice Antonin Scalia’s potential successor here.

Over the last two days, both Sen. Chuck Schumer (D-NY) and Vice President Joe Biden have weighed in on the kind of nominee they think President Obama should recommend to replace deceased Supreme Court Justice Antonin Scalia.

And as things go, it is no accident that these two men, leaders in the Democratic Party with direct access to the president, said basically the same thing within a couple of days of each other. They are either floating trial balloons—testing public reaction—for the White House or trying to influence the president’s decision. Either way, they are using their positions and their access to the media as a way of sending a message.

And either way, I call foul.

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Both Schumer and Biden seem to agree that what we need now is a “mainstream” nominee for the Court.

In an interview on ABC News’ This Week with George Stephanopoulos last Sunday, Schumer, who sits on the Senate Judiciary Committee, said he expects President Obama to nominate a “mainstream” justice, citing the potential to win support of “mainstream Republicans.”

“I think the president, past is prologue, will nominate someone who is mainstream,” Schumer stated. As the New York Times reported:

“When you go right off the bat and say, I don’t care who he nominates, I am going to oppose him — that’s not going to fly,” he said, criticizing the majority leader Mitch McConnell for pledging to block any nominee. “A lot of the mainstream Republicans are going to say, I may not follow this.”

According to the Washington Post, Biden echoed Schumer’s statement in an interview aboard Air Force Two:

“This is a potential gigantic game changer” for the philosophical makeup of the court, Biden said in an interview with The Washington Post and Politico. “And my advice is, the only way we get someone on the court, now or even later, is to do what we’ve done in the past…we have to pick somebody, as the president will, who is intellectually competent, is a person of high moral character, is a person who is demonstrated to have an open mind, and is a person who doesn’t come with a specific agenda.

These comments are so full of potentially meaningless and yet potentially profound code and buzzwords, I don’t know where to start.

First of all, what exactly these days is a “mainstream Republican” and where do they live? Is Biden referring to the senators who joined a party-line vote to overturn the Affordable Care Act? Is he talking about the “moderate” GOP party-line vote to impose a 20-week abortion ban? Which of the Republicans that voted against Obama’s nominees to the Consumer Financial Protection Bureau are the moderate ones? Which of the ones that have held up judicial nominees for over two years are “mainstream”? How is opposing all attempts by the White House and Democrats to pass paid family leave a “mainstream” position, especially in light of the fact that this policy is supported by a wide majority of Americans? Are the mainstream the ones that continue to block the Paycheck Fairness Act?

Second, does Vice President Biden mean to suggest that a justice who perhaps believes that women have rights to their own bodies cannot be “intellectually competent … a person of high moral character … a person who is demonstrated to have an open mind … a person who doesn’t come with a specific agenda”? Is promoting public health an agenda? Are basic human rights a specific political agenda?

Is Biden suggesting, no matter how subtly and in meaningless Beltway-speak, that a jurist who pays heed to overwhelming medical and public health evidence on the role that both contraception and abortion play in improving public health, women’s health, and infant and child health is not “mainstream” and otherwise has an agenda?

Does a jurist with roots in a specific community and with an understanding of the law’s differential impact on people of different races, classes, and privileges come with an agenda?

Given that the white population will soon be the minority, who is “mainstream,” the white guy or the person of color?

Let’s face facts: What is considered “mainstream” for both of these men is not necessarily based on the needs and priorities of the average American. Schumer is only “mainstream” in that he is a white male senator in a legislative body that is dominated by white male senators (the Senate is 80 percent male and 94 percent white) and in that he takes huge amounts of funding from Wall Street. “Mainstream” for Schumer might well be translated to mean someone who won’t seek to curb the influence of big money in politics.

Likewise, Joe Biden is only “mainstream” on many issues insofar as they can be comfortably navigated within the Old Boys Clubs of which he is a longstanding member, one of which is the Senate and the other of which is the group of Catholic Democrats that remain beholden at some level to the most-conservative U.S. Conference of Catholic Bishops. It was Biden, who as a Catholic is highly ambivalent about reproductive health care, played leading roles in the Obama administration’s decisions on the Stupak Amendment in the ACA, and in the “contraceptive accommodations” made to religious groups, among many other things.

The carve-outs never satisfied the rabidly right-wing bishops and led to continuing lawsuits and ever greater demands of exemptions. This is not a “mainstream” position, especially if you consider that 98 percent of Catholic women (and 99 percent of all women) who have ever had sex have used modern forms of birth control. The only mainstream position on birth control and abortion is the one that recognizes both the public health and social science evidence, the rights of women as people, and the fact that an overwhelming majority of women use birth control and one third of women in the United States have abortions. There is nothing mainstream about white, religious men ignoring that fact or pretending that they know better.

The only reason they suggest that someone who does not have any record of supporting evidence or rights might (and it’s a highly questionable assumption) get approved by the GOP-led Senate is because the Republicans themselves are not mainstream by any stretch of the imagination, and are only interested in someone with an agenda to protect their interests.

In my definition, someone who, as Biden suggests, “is intellectually competent, is a person of high moral character, is a person who is demonstrated to have an open mind, and is a person who doesn’t come with a specific agenda,” is a person who recognizes that human rights, evidence, and justice should be of central concern to the Supreme Court. When I hear Biden use these words, I hear echoes of his 2007 statement that Barack Obama was the first “mainstream African-American who is articulate and bright and clean and a nice-looking guy.” It sounds to me that “mainstream” is someone comfortable to the white men in power.

The word “mainstream” is now meaningless. The media won’t challenge it because most of the reporters are stuck in a white male corporate bubble and spend their time at parties at the vice president’s residence. You can’t depend on them to challenge the very notion of what it means.

When you hear a white male senator or a white male vice president—both of whom have vested interests in agendas that do not represent either the interests of the greater number of people in this country, and/or also ignore solid scientific evidence—use terms like “mainstream,” know one thing: They are not swimming in the same stream as the rest of us.