Sustained Outrage

Senate confirms Diaz

The U.S. Circuit Court of Appeals for the 4th Circuit has a new judge. Today the Senate unanimously confirmed Albert Diaz, 50, of North Carolina, making him the first Latino in the court’s history.

Diaz’ nomination had been pending since Jan. 28, which had been the longest active wait of any of President Obama’s judicial nominees. Diaz’ confirmation means that the 15-seat panel, which sits in Richmond, now only has one vacancy. Four of the 14 judges (Diaz, James A. Wynn, Barbara Milano Keenan and Andre M. Davis) are Obama appointees.

A very busy Senate also took the time Saturday to hold a roll-call vote on Ellen Lipton Hollander, confirming her as a district judge for Maryland by a tally of 95-0. Sen. Joe Manchin, D-W.Va., was one of the five senators who didn’t participate in the vote.

Diaz becomes the 4th Circuit’s third judge from North Carolina, the biggest state in the court’s jurisdiction. Virginia has four judges on the panel, Maryland three, South Carolina two and West Virginia two (M. Blane Michael and Robert B. King, both Clinton appointees). The seat that is vacant was formerly occupied by Judge Karen J. Williams of South Carolina, who retired in July 2009.

Senate confirms four, but Diaz continues to wait

For the first time in over three months, the U.S. Senate confirmed four federal judges yesterday. The four confirmations — Catherine Eagles to serve on the District Court for the Middle District of North Carolina; Kimberly Mueller to serve on the District Court for the Eastern District of California; John Gibney to serve on the District Court for the Eastern District of Virginia; and James Bredar to serve on the District Court for the District of Maryland — represented the district court nominees who had passed unanimously out of committee with the longest wait for a vote.

“These confirmations are long overdue.  For months, these nominations have languished before the Senate, without explanation and for no reason. Today, we confirm them unanimously. These confirmations will help fill a few of the judicial vacancies around the country, which have reached historically high levels. I hope these are the first of many confirmations by the Senate before we adjourn,” said Judiciary Committee Chairman Patrick Leahy (D-Vt.).

Through his spokeswoman, Senate Majority Leader Harry Reid (D-Nev.) called the confirmations “just a start.”

Eagles and Dibney passed out of committee on May 6. They had a long wait. But Albert Diaz (pictured above), a North Carolina judge up for a seat on the U.S. Court of Appeals for the 4th Circuit, passed unanimously out of committee on Jan. 28. He was nominated by President Obama over a year ago.

Including Diaz, there are still 34 nominees awaiting Senate votes, 19 of whom passed out of committee unanimously.

Earlier this week, the New York Times editorial board took the Senate Republicans to task for their relentless obstructionism.

The Senate’s power to advise and consent on federal judicial nominations was intended as a check against sorely deficient presidential choices. It is not a license to exercise partisan influence over these vital jobs by blocking confirmation of entire slates of well-qualified nominees offered by a president of the opposite party.

Nevertheless, at a time when an uncommonly high number of judicial vacancies is threatening the sound functioning of the nation’s courts, Senate Republicans are persisting in playing an obstructionist game. (These, by the way, are the same Senate Republicans who threatened to ban filibusters if they did not get an up-or-down vote on every one of President George W. Bush’s nominees, including some highly problematic ones.)

Because of Republican delaying tactics, qualified Obama nominees who have been reported out of the Judiciary Committee have been consigned to spend needless weeks and months in limbo, waiting for a vote from the full Senate.

Senate Republicans seek to pin blame for the abysmal pace of filling judicial vacancies on President Obama’s slowness in making nominations. And, no question, Mr. Obama’s laggard performance in this sphere is a contributing factor. Currently, there are 50 circuit and district court vacancies for which Obama has made no nomination. But that hardly explains away the Republicans’ pattern of delay over the past two years on existing nominees, or the fact that Senate Republicans have consented to a vote on only a single judicial nomination since Congress returned from its August recess.

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Former Bush lawyer: Real Republicans Don’t Filibuster

As Politico.com and others reported last week, there appears to be some movement — or at least discussion of possible movement — on many of the 38 judicial nominees currently awaiting confirmation votes in the full Senate. In the rumored deal between Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.), Democrats would have to agree to send four nominees back to the president in exchange for Republicans agreeing to confirm up to 19 non-controversial candidates.

But is a last-minute deal, with time running out before the new Congress takes office in January and forces President Obama to re-submit all of his pending nominees, really the only way to fill any vacancies? (The Senate hasn’t confirmed a federal judge since September.)

No, according to a rather unlikely source: Richard Painter, former associate counsel to President George W. Bush. In a Dec. 9 Huffington Post piece, Real Republicans Don’t Filibuster, Painter revisited public statements made by GOP senators during the previous administration that decried the use of filibusters to block President Bush’s nominees. They were right then, and they’re still right, he maintained.

For the reasons stated by these leading Republican senators, filibustering judicial nominees is wrong. Moreover, the lame duck session does not provide Republicans any excuse for suspending this principle. Since 1933, when the 20th Amendment set January 3 as the date for congressional turnover, there have been 70 lame duck judicial confirmations; 64 were of Republican nominees, and 15 occurred after Republicans lost seats in the Senate. Moreover, the recent elections focused on jobs and the economy, not judges. Republicans have no midterm mandate to block qualified nominees.

Sticking to principle is not only the right thing to do; it is also good politics for Republicans. First, the public shares the view that the filibuster is wrong. It is one thing to vote no; it is another to prevent other people from voting because they might vote yes.

Second, if Senators support a filibuster after denouncing them, it would be hard for anyone to trust what they say again. Their past opposition to filibusters would be seen as mere partisan politics. Voters respect politicians with principle; they are tired of hypocrisy.

Third, what goes around comes around. Someday Republicans will again control the White House and Senate, as they did for much of President Bush’s two terms. When a Republican President nominates conservatives to the federal bench, Democrats will look for an excuse to prevent a Senate vote. Republican Senators who filibuster now give Democrats an excuse to filibuster later.

The result could be a devastating set-back for Republicans, whose successes in putting conservatives on the bench have historically outpaced Democratic successes in getting liberals confirmed. Consider, for example, the well-known conservatives among successful Bush nominees: John Roberts, Samuel Alito, Priscilla Owen, Janice Rogers Brown, Brett Kavanaugh, Mike McConnell, and Jeff Sutton, to name a few. The failed nomination of Miguel Estrada was the exception rather than the rule. Democrats justified their obstruction then by pointing to Republican efforts to block President Clinton’s nominees, including Richard Paez, whose four-year confirmation battle was the longest ever for a circuit court nominee.

Republicans’ hard-fought battle during the Bush Administration to move away from this “tit-for-tat” toward an effective confirmation process would be lost if Democrats are now given an excuse to block future Republican nominees. Republican Senators could never again with a straight face say that filibusters are wrong. In confirmation politics, two wrongs don’t make a right; they just beget more wrongs.

Fourth, there is no compelling reason to vote against President Obama’s nominees, much less to prevent a vote on them. The nominee we hear about most often — Goodwin Liu — is mischaracterized as a radical liberal (perhaps because he teaches law at Berkeley or because he has written about how the law affects minority groups). Liu’s record, however, puts him well within the legal mainstream, and he has emphasized objectives shared by conservatives such as fixing substandard public schools and allowing parents more school choice. Moreover, his qualifications earned him the highest rating from the American Bar Association as well as endorsements from conservatives such as Ken Starr, Clint Bolick, and John Yoo. He would fill a “judicial emergency” seat that has been vacant more than 675 days.

If Liu’s nomination is the best President Obama can do to infuriate the right, the President is not trying very hard. Diatribes against Liu fill air time on talk radio but have nothing to do with the kind of judge he would likely be. Blocking him or any of the 22 other Obama nominees now awaiting a vote is not worth abandoning the principle that Republican Senators have been acclaiming for years: Senators should vote their conscience on judicial nominees, but they should vote.

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Sen. Hagan: Confirm Diaz before lame duck session ends

The Senate Judiciary Committee approved four more nominees for federal judgeships yesterday at its executive business meeting, bringing the total of candidates awaiting up-and-down votes from the full Senate to 38. (Robert N. Chatigny, up for a spot on the U.S. Court of Appeals for the 2nd Circuit, was held over.)

The Senate hasn’t confirmed a federal judge since Sept. 13, and time is running out on the current session. On Wednesday, Sen. Kay Hagan (D-N.C.) published an op-ed in the Herald Sun, calling on the Senate to confirm North Carolina Judge Albert Diaz to a seat on the 4th Circuit before his nomination expires when this session of Congress adjourns.

North Carolina is the largest and fastest-growing state in the 4th Circuit, but we have been historically underrepresented on this critical court. Since its establishment in 1891, only eight North Carolina judges have served on the court — the same number as the smallest state in the circuit, West Virginia.

One of my priorities has been to increase North Carolina’s representation on the 4th Circuit. After many months of working with the White House, it was a terrific victory for North Carolina when the president nominated Diaz and Judge Jim Wynn to the court. Wynn was confirmed in August, but Diaz still hasn’t had an up-or-down vote.

The 4th Circuit is the last stop for almost all federal cases in the region, and we need to have the court at full strength. Because of its longstanding vacancies, the Administrative Office of the U.S. Courts considers the 4th Circuit a “judicial emergency.” This negatively impacts appellate justice for North Carolinians. This bench provides the fewest oral arguments and published opinions in the country.

The delay for judicial nominees is unprecedented. By Dec. 8, 2002, during the Bush Administration, the Senate had confirmed 100 judicial nominees. But as of today, the Senate has confirmed just 41 judicial nominees. During the first two years of the previous administration, it took an average of 26 days for a circuit court nominee to be confirmed after being approved by the Judiciary Committee. Since President Obama took office, it has taken an average of 133 days. And Diaz has been waiting 314 days since the committee approved him 19-0. This is totally unacceptable.

Despite bipartisan support for his nomination, Republican leaders have objected to scheduling an up-or-down vote on his nomination. These objections have nothing to do with Diaz’s qualifications and everything to do with partisan gamesmanship.

Diaz’s and Eagles’ nominations will expire if the Senate does not vote on them before the 111th Congress adjourns. I will continue fighting to see that they are confirmed. North Carolina deserves better than the gridlock that has thus far prevented an up-or-down vote on these two extremely well-qualified nominees.

There are currently 109 judicial vacancies, 51 designated as judicial emergencies by the Administrative Office of U.S. Courts.

Updating media rules for courts

Interesting read in today’s Boston Globe about efforts by Massachusetts’ high court to modernize its rules governing media in the courtroom.

While courts in Massachusetts currently allow only two cameras in a legal proceeding — one for television broadcasts, one for print media — the new rules propose allowing a third for web outlets.

The article continues:

The court is also seeking to strike a balance between journalism in the 21st century and security concerns in criminal trials that have already led to a ban of cellphones, especially those with cameras, in courthouses statewide.

Even with the new rules, judges still have the authority to ban cameras in certain circumstances. Also, journalists would still be barred from recording jurors at all times during a trial, whether it is a civil or criminal matter.

The rules would allow journalists to use laptop computers and other electronic devices while court is in session, provided it is not disruptive.

Before a person can head into a courtroom with a camera, they must first register with the court’s Public Information Office and also be required to show they qualify as journalists under a new definition worked out by a special media-court panel.

In a summary released yesterday, the court said “the news media would be defined as those who are regularly engaged in the reporting and publishing of news or information about matters of public interest.’’

Ah, “disruptive.” It’s all in the eye of the beholder, I guess. Or up to the person wearing the black robe.

Do Sens. Reid and McConnell read their mail?

On Friday, Ashley L. Belleau, president of the Federal Bar Association, wrote a letter to Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.), urging the leaders to take action, at the very least, on the 17 candidates awaiting confirmation votes from the full Senate who passed out of the Judiciary Committee “by unanimous consent or without controversy.” This includes Albert Diaz, a North Carolina judge who was nominated by President Obama last November for a seat on the U.S. Court of Appeals for the 4th Circuit that has been vacant for 1240 days and has been declared a “judicial emergency” by the Administrative Office of the Courts.

Belleau gets right to it:

I write on behalf of the approximately sixteen thousand members of the Federal Bar Association (FBA) to encourage expedient Senate floor action on the judicial candidates reported out of the Senate Judiciary Committee and awaiting a Senate floor vote. As the Senate reconvenes, there is a very real need – in the interest of our federal court system — for the Senate to fulfill its constitutional responsibility to vote on these pending nominees.

The FBA is the foremost national association of private and public attorneys engaged in the practice of law before the federal courts and federal agencies. We seek the fair and swift administration of justice for all litigants in the federal courts. We want to assure that the federal courts are operating at their full, authorized capacity and that justice is timely delivered by the federal courts. The large number of judicial vacancies prevents the prompt and timely administration of justice in the federal courts. This is causing unnecessary hardship and increased costs on individuals and businesses with lawsuits pending in the federal courts.

Our Association’s interest is focused upon prompt, dispositive action by the Senate in filling vacancies as they arise on the federal bench. Prompt, dispositive action by the Senate on judicial candidates will assure that lawsuits filed in our federal courts are heard and decided without delay. The justice system suffers when vacancies are not filled in a timely manner. Vacancies create a burden of added litigation and economic costs that at times overwhelm the system and its ability to hear and decide matters in a timely and effective manner.

Seventeen of the 23 federal judicial candidates who await a Senate floor vote have been approved by the Senate Judiciary Committee by unanimous consent or without controversy. These candidates deserve an up-or-down vote before the 111th Congress reaches an end.

Remember, Belleau’s letter comes on the heels of last week’s letter from members of the 9th Circuit as well as Chief District Judges within the circuit, begging requesting Reid and McConnell to take action on judicial vacancies. Belleau continues:

The Federal Bar Association as a matter of policy takes no position on the credentials or qualifications of specific nominees to the federal bench. The FBA’s foremost interest lies in the assurance of prompt, dispositive action by the President in nominating qualified federal judicial candidates and the Senate in either confirming or not confirming them in a prompt manner. Such action will ultimately reduce the number of vacancies to a more tolerable level.

The Federal Bar Association firmly believes that all judicial candidates, once cleared by the Senate Judiciary Committee, deserve a prompt up-or-down vote by the Senate. Swift action is particularly needed on those candidates associated with federal circuit and district courts whose caseloads are in emergency status. We urge the Senate to vote upon these pending nominees before the end of the current legislative session.

Thank you for your support of the nation’s federal court system and your consideration of our views.

The Washington Post weighed in on Saturday with an editorial that echoed Belleau’s letter.

In all, 23 of Mr. Obama’s nominees are awaiting a Senate floor vote; 16 of them received unanimous approval from the Judiciary Committee and the vast majority were deemed “well qualified” by the American Bar Association. Eight – including the three mentioned above – have been tapped for seats designated “judicial emergencies” because of the length of the vacancy and the workload of the court.

There is plenty of blame to go around for the delays, starting with the president, who has been slow and often late in sending up names. The White House has also been timid in fighting for nominees. Senate Majority Leader Harry M. Reid (D-Nev.) has not been assertive in scheduling floor votes, and the push by some interest groups to win confirmation for liberal favorites such as controversial 9th Circuit pick Goodwin Liu may be holding up progress on the broader slate of more moderate nominees. Republicans, including Minority Leader Mitch McConnell (Ky.), have been all too eager to object to votes even on nominees with bipartisan support. The stall tactics are undoubtedly payback for Democratic filibusters of controversial but highly qualified nominees of President George W. Bush. The difference today is that even nominees without a whiff of opposition are being blocked.

Presidents deserve significant deference in judicial nominations, and every nominee deserves an up-or-down vote. But the hold-up of nominees who have garnered unanimous, bipartisan support is particularly offensive. These nominees should confirmed swiftly before Congress recesses next month.

There don’t seem to be any consent agreements on the next Executive Calendar (for Nov. 29), so it doesn’t look like any confirmation votes are imminent. Maybe Sens. Reid and McConnell can use the Thanksgiving break to catch up on some of their unread mail.

Judicial vacancies and the lame duck session

There’s been a growing chorus of voices calling upon the U.S. Senate to take action on the more than 100 vacancies in the federal judiciary during the lame duck session. In terms of knowing how the federal justice system works, some of these folks are pretty credible as experts.

On Thursday, former judges Abner J. Mikva (a Carter appointee) and Timothy K. Lewis (a Bush I appointee) published a joint opinion piece on Politico.com. After noting that almost almost one out of every eight federal judgeships is currently vacant, with that number likely to increase due to upcoming retirements, the jurists wrote:

As federal judges appointed by presidents from different parties, we urge the Senate to end the excessive politicization of the confirmation process that is creating these delays.

This obstruction and the way it undermines our democratic process would be outrageous at any time. But it is especially shameful now, because many of these qualified nominees received bipartisan support when nominated and were then approved by the Senate Judiciary Committee with broad support. Yet they have waited more than a year to be confirmed because the Senate never put their nomination to a vote.

Instead of confirming these nominees, some senators have used secret holds and filibusters to block the votes, leaving nominees in limbo for a year or more and undermining the credibility of our judiciary. Fewer nominees have been confirmed during the Obama administration than at any time since President Richard Nixon was in office.

These tactics are, as one senator noted, “delay for delay’s sake.” They are creating an unprecedented shortfall of judicial confirmations and, ultimately, a shortage of judges available to hear cases. For many Americans, this means justice is likely to be unnecessarily delayed — and often denied.

The op-ed continues:

With the Senate now back for the lame-duck session, political pressure on nominations may not be so intense. This is the time for the Senate to return to an effective process for confirming judges — one that can eliminate the appearance of excessive partisanship and apply to both Democratic and Republican administrations.

Only in this way can we begin to restore the public’s faith in the integrity of our judiciary, a crucial element of our Constitution’s delicate system of checks and balances and fundamental to our democratic system of government.

On Monday, six members of the U.S. Court of Appeals for the 9th Circuit, including Chief Judge Alex Kozinski, (as well as chief judges in all of the Circuit’s 13 U.S. Districts, plus the chief judge of the District of Guam) sent a letter to Senate Majority Leader Harry Reid (D-Nev.), Senate Minority Leader Mitch McConnell (R-Ky.), Judiciary Chairman Patrick Leahy (D-Vt.) and Ranking Member Jeff Sessions (R-Ala.).

It’s a short letter, so here it is in its entirety:

Gentlemen:

We write on behalf of the courts of the Ninth Circuit. As you know, the Ninth Circuit is by far the largest federal circuit in the country, encompassing the 9 western states, plus the territory of Guam and the Commonwealth of the Northern Mariana Islands. Approximately one fifth of the population of the United States lives within the borders of the Ninth Circuit. Our case-load reflects the diversity of our territory and the people that inhabit it and is heavily impacted by increased immigration enforcement, drug interdiction activities, prison litigation, bankruptcy and environmental cases–to name just a few of the most active areas.

In order to do our work, and serve the public as Congress expects us to serve it, we need the resources to carry out our mission. While there are many areas of serious need, we write today to emphasize our desperate need for judges. Our need in that regard has been amply documented (See attached March 2009 Judicial Conference Recommendations for Additional Judgeships). Courts cannot do their work if authorized judicial positions remain vacant.

While we could certainly use more judges, and hope that Congress will soon approve the additional judgeships requested by the Judicial Conference, we would be greatly assisted if our judicial vacancies–some of which have been open for several years and declared “judicial emergencies”–were to be filled promptly. We respectfully request that the Senate act on judicial nominees without delay.

So now it’s not just court-watchers, academics and talking heads urging the Senate to take action from the sidelines. It’s current and former judges essentially begging the upper legislative body to send them some help, because the empty seats on the bench are eroding the quality of justice in our courts.

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Jackson Kelly black lung lawyer suspended

Breaking news from the West Virginia Supreme Court of Appeals: Douglas A. Smoot, a lawyer with Jackson Kelly‘s black lung practice, has been suspended from practicing law for one year for withholding evidence from a retired miner seeking black lung benefits.

You can read the opinion, authored by Chief Justice Robin Davis, here, and previous coverage here, here and here.

Smoot had conceded that he had withheld the “narrative summary” portion of a doctor’s report from Elmer Daugherty, a retired miner who spent 42 years underground who was representing himself at the time. Smoot contended that the doctor’s narrative summary was “equivocal,” so he disclosed only the “objective” portion, the tests and X-rays, and that dissembling doctors’ reports was common practice within the black lung world.

After oral arguments in September, the justices concluded that Smoot unlawfully altered a document having potential evidentiary value.

[I]t is clear that Dr. Zaldivar’s narrative report had potential evidentiary value insofar as the report included a summary of Dr. Zaldivar’s finding that Mr. Daugherty suffered from complicated pneumoconiosis, which finding was sufficient to trigger an irrebuttable presumption that Mr. Daugherty was totally disabled.

The opinion rejected Smoot’s assertion that such conduct was common practice:

[W]e find the weight of the evidence in this case commands the opposite conclusion. For example, [Administrative Law Judge] Lesniak repeatedly expressed his shock and dismay with regard to Mr. Smoot’s failure to submit Dr. Zaldivar’s entire report. Indeed, in an order remanding the case to the District Director, ALJ Lesniak declared,

I find the separating of Dr. Zaldivar’s May 16, 2001 narrative to be unconscionable and reprimand the attorney or attorneys responsible; this was a deliberate attempt to mislead the Claimant, I expected more from this law firm. I find their defense of this practice (withholding Dr. Zaldivar’s narrative, which was surely detrimental to Westmoreland’s case) to be ludicrous. I admonish the attorneys involved not to tamper with exhibits, potential exhibits and/or any type of documents which may be entered into evidence in the future.

Davis’ opinion also concluded: “[W]e have little difficulty concluding that Mr. Smoot’s conduct was deceitful, dishonest, a misrepresentation, and prejudicial to the administration of justice, and thus, amounted to a violation of Rules 8.4(c) and (d).”

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A silver lining on judicial confirmations?

Writing for Talking Points Memo, Brian Beutler thinks that Republicans taking control of the House could have a positive impact on President Obama’s nominees.

Beutler suggests that without much legislation coming out of the House to occupy the Senate’s time, Senate Majority Leader Harry Reid (D-Nev.) can schedule votes for pending candidates for federal judgeships and administration posts.

[W]hile the House passes legislation the Senate has no interest in considering, Majority Leader Harry Reid will have much more time, if he chooses, to devote to confirming a large backlog of Obama’s judicial and executive branch nominees — particularly numerous non-controversial picks, who will have to be renominated next year.

That’s certainly what advocates would like to see.

“Reid should concentrate Floor time on must pass bills, message and other votes that highlight differences and important matters that are or should be non-controversial, including confirming lifetime federal judges,” Glenn Sugameli, an advocate for swift judicial confirmations, tells TPM. “All of Obama’s nominees to circuit and district courts have had the support of their home-state Republican and Democratic senators and the vast majority have been non-controversial nominees who have been approved by the Judiciary Committee without objection and approved unanimously when they finally receive usually long-delayed Floor votes.”

“If one or more Republican senators force cloture votes on consensus nominees, they will accurately be seen as mindlessly obstructionist,” Sugameli says. “If they do not, nominees will be confirmed quickly.”

However, scheduling and holding floor votes still takes time, and there don’t seem to be any indications that GOP senators will any more accommodating with a 47-seat minority than they were with a 41-seat minority. The TPM piece continues:

That’s not to say that scores of judicial vacancies will be filled immediately, or that President Obama will (finally) see his executive branch fully staffed. Democrats will have a much smaller majority of 53 Senators, and any single Republican will be able to force Democrats to round up 60 votes and spend nearly a week of floor time to get a nominee confirmed.

“I would remind you that actions have consequences and we’re going to have to deal with what the House sends us and, at the other end, it’s three days plus [per filibuster] and all the days add up,” says Reid spokesman Jim Manley.

But one of the biggest hurdles nominees faced this year was a thick legislative agenda: they were literally crowded out by the sheer volume of routine, emergency, and history-making legislation. Next year that won’t be an issue. And that has some advocates seeing a silver lining around the midterm election results.

Hmm. I may be a big fan of Monty Python, but I don’t think I’m ready to start singing along just yet, particularly given that Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, just published this call for the restoration of bipartisanship and civility on Politico.com.

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Senate Judiciary Committee schedules hearings on nominees

This just in: the Senate Judiciary Committee announced today that 12 judicial nominees are on the agenda for the committee’s next business meeting on Nov. 18. It also scheduled a separate hearing for Nov. 17 that includes a panel of four judicial candidates who have not yet appeared before the committee.

Assuming the committee approves all 12 nominees on Thursday — and that’s a pretty big assumption — that would put the number of nominees for circuit courts awaiting full senate approval at 9 (for 20 vacancies) and for district courts at 25 (for 86 vacancies). Let’s not forget that 50 of those 106 vacancies have been declared judicial emergencies by the Administrative Office of the U.S. Courts.

Of course, there are no consent agreements on Friday’s Senate agenda, so no movement yet on actually confirming any of the pending nominees during the so-called lame-duck session before the 112th Congress takes office in January. The Alliance for Justice has urged the full Senate to take up the nominations that have passed out of the Judiciary Committee during the lame-duck session:

In addition to being desperately needed and largely uncontroversial, these nominees represent the hope of creating a federal judiciary that is representative of our nation’s demographic diversity. Thirteen of the pending nominees are people of color and 10 are women. Many would be historic “firsts” in their respective courts if confirmed to the bench.

Though these nominees have been awaiting votes for far too long, lame-duck sessions have frequently been an occasion when judicial nominees are approved. For instance, during the 2002 lame-duck session in a closely split Senate, President George W. Bush had 20 nominees confirmed, all but one on a voice vote, including controversial circuit court nominee Michael McConnell.

According to AFJ President Nan Aron, “These historic levels of obstruction have serious consequences for American courts. The Senate needs to put aside partisan rancor, perform the task the Constitution has assigned to it, and confirm these qualified, diverse judges to the federal bench. It would be an unforgiveable tragedy if obstructionism during the lame-duck Congress helped create a lame-duck judiciary.”