Sustained Outrage

Will Citizens United push Obama on judicial vacancies?

gavelflag.jpgCall it the law of unintended consequences, but with its ruling in Citizens United, the U.S. Supreme Court may have just given President Obama additional motivation to take strong action to fill the 102 vacancies in the federal judiciary.

Here’s how Nan Aron, president of Alliance for Justice, sees it in an opinion piece published Tuesday on Politico.com:

The breathless reporting of the State of the Union “confrontation” between President Barack Obama and the conservative members of the Supreme Court in the wake of the Citizens United v. FEC ruling has overshadowed a much more serious issue — congressional Republicans’ systematic blocking of the president’s judicial nominees.

While ultraconservatives regularly decry “judicial activism,” this criticism rings false. In fact, conservatives have long had the goal of packing the federal bench with ideological appointees. For years, Republicans have fought to place their own judicial activists in powerful judicial positions. The presence of Justices John Roberts and Samuel Alito on the Supreme Court represents the zenith of this strategy; and, as Citizens United proved, these justices’ activism can have a powerful, lasting legacy.

Now, faced with the prospect of seeing a president with a different judicial philosophy leave his mark on the federal judiciary, senate Republicans have a new strategy, according to Aron: Stall, stall, stall.

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president_official_portrait_lowres.jpgEarlier today, during a meeting with Senate Democrats, President Obama said that getting nominees confirmed — including judicial nominees — “is going to be a priority.” The president urged lawmakers not to hold nominees hostage over unrelated issues, saying, “Let’s have a fight about real stuff.”

Here’s the exchange between Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, and the president:

patrickleahy.jpgLeahy: You have a great sense of what the federal judiciary should be. I think back to President Clinton’s time, when the other side blocked 61 of his judges. You’ve had some superb judges. You’ve talked to both Republicans and Democrats, sent up some superb names. And Senator Reid still has to file a cloture. We have to spend a week of doing that, and then they pass by 100 to nothing or 90-10.

My thing is this — because of what they did last time, we end up with the greatest shortage and the most judicial crises I think in our history. Will you continue to work very hard to get up names as quickly as possible, so that we can do this, and help us get these judges through? I don’t want the same judicial crises to occur. You’ve had good nominees. Can you commit to work with us, both parties, and keep trying to get them through?

Obama: Well, this is going to be a priority. Look, it’s not just judges, unfortunately, Pat, it’s also all our federal appointees. We’ve got a huge backlog of folks who are unanimously viewed as well qualified, nobody has a specific objection to them, but end up having a hold on them because of some completely unrelated piece of business. That’s an example, Michael, of the kind of stuff that Americans just don’t understand.

On the judges front, we had a judge for the — coming out of Indiana, Judge Hamilton, who everybody said was outstanding — Evan Bayh, Democrat; Dick Lugar, Republican; all recommended. How long did it take us? Six months, six, seven months for somebody who was supported by the Democratic and Republican senator from that state. And you can multiply that across the board. So we have to start highlighting the fact that this is not how we should be doing business.

Now, in fairness — in fairness, when we were in the minority, there were some times where we blocked judges, we blocked appointees. I think it’s fair to say we were a little more selective in how we did it — “a lot more,” somebody said. (Laughter.)

So this is an example of where I’m going to reach out to Mitch McConnell; I know Harry has as well. And I’m just going to say, look, if the government is going to work for the American people, I can’t have the administrator for GSA, which runs every federal facility, all federal buildings all across the country — here we are, we’re trying to save billions of dollars, cut waste — Claire McCaskill has been all on top of how can we audit our spending — and we could save billions of dollars in ending old leases that don’t work or renegotiating them or consolidating buildings and efficiencies. But I don’t have a GSA administrator, even though I nominated somebody who was well qualified several months ago, and nobody can tell me that there’s anything particularly wrong with her. They’re blocking her because of some unrelated matter. I don’t know, you guys may know better than I do. And that is — that has to end. It has to end. (Applause.) And the American people want it to end.

Let’s have a fight about real stuff. Don’t hold this woman hostage. If you have an objection about my health care policies, then let’s debate the health care policies. But don’t suddenly end up having a GSA administrator who is stuck in limbo somewhere because you don’t like something else that we’re doing, because that doesn’t serve the American people. Then they don’t know what the argument is about. Then it’s just sort of a plague on both your houses because it looks like you guys are just fighting all the time. And we’ve got to put an end to that.

As I’ve noted before, even non-controversial nominees, including those who pass out of committee without any votes against them, face long waits before they get a vote by the full chamber.

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Diaz and Wynn reported out of committee

At its business meeting this morning, the Senate Judiciary Committee approved the nominations of Albert Diaz and James A. Wynn Jr., two North Carolina judges up for seats on the U.S. Court of Appeals for the 4th Circuit.

Diaz was approved unanimously, 19-0, while Wynn garnered one no vote, passing out 18-1.  The bipartisan support in committee bodes well for their confirmation votes by the full senate, where candidates who were non-controversial in committee tend to be confirmed by wide margins.

But when will the senate take action? I put that question to University of Richmond law professor Carl Tobias, an expert on the judicial confirmation process.

“That’s not easy to answer,” he said. “The last person confirmed for an appellate court had to wait four months.”

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4th Circuit update: Wynn and Diaz held over

Albert Diaz and James A. Wynn Jr., the two North Carolina judges nominated to the U.S. Court of Appeals for the 4th Circuit, have been held over by the Senate Judiciary Committee during today’s business meeting.

Both judges appeared before the committee on Dec. 16, when their home-state senators, Democrat Kay Hagan and Republican Richard Burr, both urged the committee to act quickly to confirm Wynn and Diaz and fill two of the four openings on the 15-seat 4th Circuit.

Burr and Hagan’s entreaties notwithstanding, holding over nominations for at least a week has become standard operating procedure for the judiciary committee, even for candidates with bipartisan support. So during today’s meeting, O. Rogeriee Thompson, a federal judge from Rhode Island who’s been nominated for the 1st Circuit, passed out of committee on a voice vote. Naturally, Thompson was held over at the previous business meeting on Dec. 17.

albertdiaz.jpgjameswynn.jpgTwo North Carolina judges who have been nominated for the U.S. Court of Appeals for the 4th Circuit are on the agenda for Thursday’s business meeting of the Senate Judiciary Committee. Albert Diaz (left) and James A. Wynn Jr. (right) fielded questions from committee members on Dec. 16, but the committee didn’t take up their nominations before the holiday recess. Now that Congress is back in session, Thursday marks the first opportunity for the committee to endorse Winn and Diaz to the full senate.

When they introduced Diaz and Wynn, both North Carolina senators, Republican Richard Burr and Democrat Kay Hagan, urged the committee to move quickly to fill the four vacancies on the 4th Circuit’s 15-seat panel. Given this bipartisan support (and that both judges received “unanimously well qualified” ratings from the American Bar Association), it will be interesting to see if the committee approves their nominations right away, or if they are held over for a week, which has been standard procedure for the judiciary committee.

Meanwhile, another nominee to the 4th Circuit, Virginia Supreme Court Justice Barbara Milano Keenan, passed out of committee on Oct. 29. While the latest edition of the senate’s executive calendar indicates that the full senate will vote Wednesday on Barbara Baldwin Martin, a U.S. District Judge from Atlanta nominated for the 11th Circuit Court of Appeals, there is no indication that Keenan’s nomination will get a vote anytime soon.

4th Circuit update: Diaz and Wynn appear before Judiciary

In the whirlwind that led up to the holidays, I failed to take notice in this space of the Dec. 16 hearing before the Senate Judiciary Committee for two nominees to the U.S. Court of Appeals for the Fourth Circuit, Judges James A. Wynn Jr. and Albert Diaz, both of North Carolina.

Both nominees have the enthusiastic support of their home state’s senators, Republican Richard Burr and Democrat Kay Hagan. In their introductory remarks, Burr praised Wynn and Diaz as “two distinguished nominees,” while Hagan called them “exactly what we need on the 4th Circuit Court of Appeals.”

Burr and Hagan lamented the multiple vacancies on the 4th Circuit, and urged their colleagues to quickly confirm Diaz and Wynn. “I suggest that this committee look for an expedited review and referral to the full senate so that the deficiency on the 4th Circuit can be filled,” Burr said.

Hagan added:

There have been inexcusable vacancies on this court throughout history. And given that the U.S. Supreme Court only reviews one percent of the cases it receives, the 4th Circuit is the last stop for almost all federal cases in the region, and we must bring this court back to its full strength.

Since 1990 when this circuit was granted 15 seats, it has never had 15 active judges. But specifically, there has been a history of partisan bickering over the vacancies on the 4th Circuit. But with these nominees and this process, we are changing the course of history, and I am very excited about confirming these judges.

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abdulkallon.jpgchristinareiss.jpgI haven’t had a chance to write much about judicial nominations for a couple of weeks, but I was encouraged to see that the U.S. Senate used voice votes to confirm two judges last month. On Nov. 21, Abdul K. Kallon (left) and Christina Reiss (right) breezed through, becoming federal judges in Alabama and Vermont, respectively.

Hey, maybe the senators have heard the chorus of those, like University of Richmond law professor Carl Tobias in a recent commentary, calling for a faster confirmation process, and have decided to ratchet down the partisan political skirmishes. At least as far as judicial nominees are concerned.

Not so fast.

On Tuesday, by a roll-call vote, the Senate confirmed Jacqueline Nguyen to the federal bench in the Central District of California. Judge Nguyen’s nomination must have been controversial, right, if she merited a roll-call vote?

Nope. Unanimous. 97-0.

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Judicial nominations: “Partisan political warfare”?

That’s how Sen. Arlen Specter (D-Pa.) sees it. Speaking Tuesday in support of Indiana U.S. District Judge David F. Hamilton‘s nomination to the U.S. Court of Appeals for the Seventh Circuit, Specter said:

arlenspecter.jpgSpeaking candidly, perhaps bluntly, Judge Hamilton is a pawn in partisan political warfare. That is the long and short of it. This is the 90th filibuster in the past several months. This follows a pattern, regrettably, that goes back almost two decades, when both sides, Democrats and Republicans at various times, have engaged in filibusters against judicial nominees where there was no justification to do so. It occurred extensively during the Clinton administration. At that time, on the other side of the aisle, I supported many of President Clinton’s nominees. It occurred during the Bush administration, when I chaired the Judiciary Committee, and there were repeated filibusters by Democrats against President Bush’s nominees.

At that time, this Chamber was almost torn apart with the ferocity and intensity of the partisanship, with serious consideration being given to what was called the nuclear or constitutional option, when there was serious consideration given to altering the traditional requirement of 60 votes to end a filibuster. There was a tactic devised to challenge the ruling of the Chair, which could be overruled by or upheld by only 51 votes, and thereby move the judicial nominees without the traditional 60 votes. Fortunately, sanity and tradition prevailed and we worked out a compromise with the so-called Gang of 14 to confirm some and to reject others. Now we find the pattern continues.

It is my hope that at some point we can declare a truce, an armistice, and stop the partisan political warfare. The nomination of Judge Hamilton would be a good occasion to do that. 

Well, there was no truce.

On Tuesday, Republicans tried unsuccessfully to filibuster Hamilton’s nomination, which prompted the Washington Post‘s Dana Milbank to observe: “When you’re in politics, a certain amount of hypocrisy comes with the job. Still, what happened on the Senate floor Tuesday stretched even the senatorial capacity to suspend shame to new levels of elasticity.”

And on Thursday, in a highly partisan vote, the Senate confirmed Hamilton by a 59-39 margin. The only Republican to vote for Hamilton was Sen. Richard Luger of Indiana, who, along with his Democratic colleague Evan Bayh, recommended Hamilton in the first place.

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