Sustained Outrage

Obama’s confirmation scorecard

(AP Photo/Charles Dharapak)

Earlier this month, Russell Wheeler of the Brookings Institution published an interesting comparison of judicial confirmations during the first two years of the administrations of Presidents Barack Obama, George W. Bush and Bill Clinton. Interestingly, all three faced Democratic majorities in the Senate, although under President Bush the margin was a very slim 51-49.

Wheeler started with the general observation that under the five presidents preceding Obama, the percentage of circuit court nominees confirmed by the Senate has crept downward (Carter 92 percent, Reagan 88, Bush I 79, Clinton 73, Bush II 71) while district court nominees have remained fairly steady and high (Carter 91 percent, Reagan 94, Bush I 79, Clinton 87, Bush II 92).

When comparing Clinton, Bush II and Obama’s first two years, some interesting differences emerge. Clinton inherited 17 circuit court vacancies, nominated 22 candidates, had 19 confirmations, resulting in 16 vacancies when the Senate adjourned. Under Bush II, those numbers are 27 vacancies, 31 nominees, 16 confirmations and 25 remaining vacancies. For Obama, it’s 13 vacancies, 25 nominations, 16 confirmations and 16 remaining vacancies. Clinton and Bush II reduced their vacancies slightly, while Obama saw them increase.

For district court vacancies, there’s an even bigger discrepancy. Again, during the first two years, Clinton inherited 90 vacancies, nominated 118, confirmed 107, with 52 remaining vacancies. For Bush II: 54 vacancies, 98 nominations, 83 confirmations, and 35 remaining vacancies. Under Obama: 41 vacancies, 78 nominations, 44 confirmations, and 76 remaining vacancies. Clinton reduced the vacancies he inherited by 42 percent, Bush II by 35 percent. Obama saw the vacancies increase by 85 percent.

Wheeler noted:

That Obama got even the district confirmations he did, moreover, was due to the lame duck session. Confirmations don’t stop on July 1 of election years, even if they become more difficult. 47 of Clinton’s 107 district confirmations came in August through October 1994.

The 2002 107th lame duck Democratic Senate, with a switch in party control looming, confirmed 17 Bush district nominees. The 2010 111th lame duck Senate confirmed 14 Obama district nominees. But different things were going on. The lame duck 107th was mainly cleaning out relatively recent Bush nominations. The 17 Bush appointees it confirmed had waited on average 149 days for Senate action; only three had been nominated before June 2002. By contrast, Obama’s 14 lame duck district confirmations represented a deal to clean up mostly long-standing, non-controversial nominees. They waited on average 257 days for confirmation, and only one had been nominated after June 2010.

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Obama nominates Floyd for 4th Circuit

Today, President Obama nominated Henry F. Floyd, a federal judge from South Carolina, for the last open seat on the U.S. Court of Appeals for the 4th Circuit.

If confirmed, Floyd would be the fifth judge Obama has placed on the 4th Circuit, which has 15 seats total. The previous four were Andre M. Davis of Maryland, Barbara Milano Keenan of Virginia, James A. Wynn and Albert Diaz, both of North Carolina.

Here’s the White House’s press release:

WASHINGTON – Today, President Obama nominated Judge Henry F. Floyd for the United States Court of Appeals for the Fourth Circuit.

“Throughout his career, Henry Floyd has demonstrated unwavering integrity and a firm commitment to public service,” said President Obama.  “I am proud to nominate him to serve on the United States Court of Appeals.”

Judge Henry F. Floyd: Nominee for the United States Court of Appeals for the Fourth Circuit

Judge Henry F. Floyd is a distinguished jurist without over 18 years of judicial experience.  For the past seven years, he has served as a U.S. District Judge for the District of South Carolina.

Judge Floyd was born in Brevard, North Carolina, and moved to Pickens, South Carolina as a young child.  He received his B.A. in History from Wofford College in 1970, and his J.D. from the University of South Carolina School of Law in 1973.  While at Wofford, Judge Floyd joined the Reserve Officers Training Corps and was commissioned a Second Lieutenant in the United States Army, later achieving the rank of First Lieutenant.

In 1972, Judge Floyd was elected to the South Carolina House of Representatives and served until 1978.  He began his private law practice in 1973 with the formation of the firm of Floyd and Welmaker, P.A.  Five years later, the firm became Acker, Acker, Floyd & Welmaker, P.A., after it merged with another law firm.  While in private practice, Judge Floyd served as a Commissioner on the South Carolina Forestry Commission from 1979 to 1991 and was counsel for Pickens County from 1986 to 1992.  In 1992, Judge Floyd was elected by the South Carolina General Assembly to serve as a Circuit Court Judge for the Thirteenth Judicial Circuit and held that position until he joined the federal bench.

How the Senate can honor Judge John Roll

As the world now knows, Judge John M. Roll, Chief U.S. District Judge for Arizona, was among the six people murdered in Saturday’s shooting rampage in Tuscon. Although U.S. Marshals had placed Roll under 24-hour security for a month in 2009 following his ruling in a controversial civil case involving immigration, then as now a hot-button issue in Arizona, Roll does not appear to have been targeted by the alleged shooter, Jared Lee Loughner. “He was in the wrong place at the wrong time,” said Sheriff Clarence W. Dupnik of Pima County, Ariz., as reported in the New York Times.

Apparently, Judge Roll stopped by the event to thank Rep. Gabrielle Giffords, D-Ariz., for signing a letter sent to Judge Alex Kozinski, chief judge of the U.S. Circuit Court for the 9th Circuit, asking the appellate court to declare Roll’s district a judicial emergency, according to the Wall Street Journal. Districts along the U.S.-Mexico border are swamped with immigration cases, making them some of the busiest districts in the country.

Judge Roll called Ms. Giffords within the last couple of days to thank her for signing the letter; she mentioned she was doing a constituent event in the area where he lived so he decided to attend the event to thank her, according to Judge [Michael] Hawkins.

The letter signed by Rep. Giffords and Rep. Pastor, outlined the challenge Judge Roll faced in handling a growing caseload. “The District of Arizona is simply overworked and understaffed…Much of the District’s caseload is a direct result of the crisis at the U.S.-Mexico border. Judicial resources in the District of Arizona are simply unable to keep pace with this escalating crisis at the border.”

Roll, 63, was a husband, father and grandfather, and he spent his entire legal career in public service. And while he did not shy away from controversy, he was kind and cordial on the bench, the Times’ piece noted.

Richard M. Martinez, a lawyer who had appeared before Judge Roll more than a dozen times over the years, said he admired how Judge Roll had appeared unshaken by the death threats over the rancher case.

“His commitment to making the right decisions as he saw them, to the point of putting himself at risk, was a reflection of who he was and how he acted as a judge,” Mr. Martinez said.

In the courtroom, Judge Roll was formal, civil and fair, Mr. Martinez said. “Even when he ruled against you, more often than not it was hard to argue against the decision he made,” he said. “You got a fair day in court, and that’s all you can ask for.”

Writing for The Atlantic, Andrew Cohen stressed the importance of understanding Roll’s ruling in the immigration case, and praised the judge’s fairness and courage in the face of hateful threats and vitriol.

In the aforementioned lawsuit, which came to a head in 2009, Judge Roll did precisely what federal judges are supposed to do–apply the law neutrally, treat the poor and dispossessed no worse and no better than the rich and powerful, and seek to dispense a measure of justice without fear or favor. As a result of his courage, his application of the law in circumstances he knew would be unpopular among Arizona’s loudest activists, Judge Roll was threatened with death, both privately and publicly. He and his family needed round-the-clock security from federal agents.

Here’s how Judge Kozinski and others recalled him:

“Judge Roll was a widely respected jurist, a strong and able leader of his court, and a kind, courteous and sincere gentleman. He worked tirelessly to improve the delivery of justice to the people of Arizona. He was always upbeat, optimistic, enthusiastic and positive in his outlook. He touched many lives and will be sorely missed by all who knew him – colleagues, court staff, members of the bar.”

Ninth Circuit Judge Mary M. Schroeder of Phoenix, a former chief judge of the circuit, said Judge Roll was respected and loved in both his professional and personal life.

“He was famous for being able to say so many genuinely nice things about people without having to consult notes, for he so genuinely loved people and had such a remarkable mind,” Judge Schroeder said. “Judge Roll will be greatly missed and will continue to provide inspiration for the generations of lawyers and judges who were fortunate enough to know him.”

Fair, neutral, civil, just, kind, courteous — by all accounts, Roll was exactly the kind of jurist America wants on the federal bench. But one thing really jumped out at me when I reviewed Roll’s biography: He was nominated by President George H.W. Bush on Sept. 23, 1991, and confirmed by the U.S. Senate on Nov. 22, 1991 — less than two months later.

That’s the way judicial confirmations are supposed to work. After consultation with the home state’s senators, the president nominates a candidate, the Senate Judiciary Committee gets to kick the tires, and if everyone agrees that the nominee is qualified — as was clearly the case with Judge Roll — then the candidate is quickly confirmed and put to work.

No secret holds. No hollow threats to filibuster. No cloture votes. No backroom wheeling and dealing to secure the necessary floor time for a vote.

Today, such an expeditious confirmation of a judicial nominee is unthinkable. Even noncontroversial candidates languish for months on end. Judge Roll’s inadvertently tragic advocacy to Rep. Giffords is a devastating reminder that our federal courts are suffering because of it.

While proclamations and heightened focus on judicial security are all well and good, the Senate can best honor Judge Roll by living up to its obligation to confirm qualified judges in a timely manner. This is not to say that every nominee should be fast-tracked, or that the Senate automatically sign off on whatever name the White House sends over. If a senator has a genuine issue with a particular candidate, the lawmaker should make his or her position known by voting no. But when obviously qualified, non-controversial candidates are nominated, they should be confirmed without politically motivated delays. It’s that simple.

Thoughts on the (new) 4th Circuit

Thanks to Saturday’s confirmation of North Carolina Judge Albert Diaz, the U.S. Court of Appeals for the 4th Circuit now has 14 of its 15 seats filled, its highest complement of judges in years. I thought now would be a good time to check in with Carl Tobias, a law professor at the University of Richmond and an expert on the nomination process.

Obama’s four appointees have changed the makeup of the court, which now has nine judges who were nominated by Democratic presidents and five by Republican presidents. However, it’s too soon to conclude that the 4th Circuit, which has the reputation for being one of if not the most conservative Circuit Court in America, has shifted dramatically, he warned.

“I don’t think there’s much of a story in terms of a radical change in terms of the direction of the court,” Tobias told Sustained Outrage. “[The party of the nominating president] is a pretty crude instrument for measuring how people will vote on cases.”

All four — Diaz, James A. Wynn, Barbara Milano Keenan and Andre M. Davis — were already sitting judges, and it’s unlikely to expect any of them to depart wildly from their substantial judicial records, he said. Any shift is likely to be very incremental, but it’s too soon to draw any conclusions, he said.

“If you take their reputations, I think it’s clrea that the four of them are less conservative than the court was before. But how much so, I have no idea,” he said.

In two years, Obama has now placed more judges on the 4th Circuit than George W. Bush did during his eight years in office. Tobias said that the two president have varied in their approaches to filling the vacancies, with Bush holding steadfastly to his nominees who were suggested by the White House. In contrast, Obama has shown substantial deference to the home-state senators for each vacancy, making the Senate more willing to confirm his nominees, he said.

“Part of it was he was willing to listen to the senators, very much so,” he said. “It’s a lesson in how to successfully conduct judicial selection in the 4th Circuit.”

As it did under Bush and Bill Clinton, the number of judicial vacancies has soared over 100 during Obama’s first term. But unlike his immediate predecessors, Obama has not succeeded in quickly reducing that number from its peak, with the number of vacancies staying over 90 or so for the last 16 months, Tobias noted. It is this long period of many vacancies that has put such a strain on the federal court system, he said.

“There just hasn’t been a major dent in [the high number of vacancies], and that’s what’s troubling,” he said. The difference has been the loss of the tradition of confirming well-qualified, non-controversial district nominees.

“That tradition was honored forever, and I don’t think it is anymore. That has contributed substantially to what we’re seeing now,” he said.

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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 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.

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 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:


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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