Sustained Outrage

Holds and the 4th Circuit

With so much attention naturally focused on the nomination of Elena Kagan to the U.S. Supreme Court, it’s easy to forget that there are still 99 federal judicial vacancies, including 16 on the appellate level.

Several recent editorials have blamed the slow pace of confirmations on anonymous holds, a procedural maneuver that allows a single senator to block a nomination (or legislation) without having to provide any justification.

Here’s the Washington Post’s take, which blamed Sen. Jim DeMint (R-S.C.) for torpedoing a recent bipartisan effort to ban holds by attaching a last-minute amendment:

There is no excuse for the Senate institution known as the secret hold–the process by which a single, anonymous senator can block action without having to come forward and explain why. Senators know this, which is why every time the question has come before them, they have voted to do away with the secret hold. But somehow the hold has always held on — because while no senator has the guts to defend it publicly, behind the scenes the secret hold is a useful tool for those who are more interested in blocking and extorting than in legislating.

On Tuesday, an editorial in the Charlotte Observer claimed that a senatorial hold by Jon Kyl (R-Ariz.) was responsible for holding up the nominations to the U.S. Court of Appeals for the 4th Circuit of two North Carolina judges, Albert Diaz and James A. Wynn Jr. They were reported out of the Senate Judiciary Committee on Jan. 28.

Their nominations, as those of so many North Carolinians whose names have been sent to Washington for Senate approval, ran afoul of U.S. Sen. Jon Kyl, Republican of Arizona, and they have moved not one inch closer to Senate confirmation. Kyl has given no compelling reason for his action in late April blocking a vote by the full Senate. He has said only he did not want to jeopardize a deal between Republicans and Democrats on some other nominees, but Kyl appears to be using Wynn and Diaz as pawns in one of the pettiest displays of pertinacious politics in a congressional session noted for it.

The refusal to hold a confirmation vote on the two N.C. nominees is indefensible. There is no question about the character of these two nominees or their abilities. The only question is how long Sen. Kyl will block a vote. [North Carolina Republican Sen. Richard] Burr should use his influence with his party to allow this vote to go forward and put these outstanding jurists to work on the 4th Circuit Court of Appeals.

This piece in the Roanoke Times quoted Sen. Ron Wyden (D-Ore.), who co-sponsored the effort to get rid of holds, as saying the cause of open government was “blindsided” by DeMint, who effectively “kneecapped” his colleagues.

Continue reading…

Judiciary approves Goodwin as U.S. Attorney

At this morning’s executive business meeting, the Senate Judiciary approved Booth Goodwin to become the U.S. Attorney for the Southern District of West Virginia. Goodwin’s endorsement came at the end of the meeting, when a handful of nominees, including John Foster and Gary M. Gaskins to be the U.S. Marshals for West Virginia’s Southern and Northern districts, respectively, were approved all together by the committee.

Almost the entire meeting was spent discussing a different Goodwin, Goodwin Liu, a law professor at the University of California at Berkeley who is up for a seat on the U.S. Court of Appeals for the Ninth Circuit. Liu passed out of committee by a 12-7 vote on strict party lines, with multiple Republican senators, including Ranking Member Jeff Sessions (R-Ala.), Orrin Hatch (R-Utah), John Kyl (R-Ariz.), Lindsey Graham (R-S.C.), John Cornyn (R-Tex.), and Tom Coburn (R-Ok.) all speaking out against Liu’s record as an academic with no judicial experience.

Sessions worried about adding Liu to the Ninth Circuit, which he called “one of the most undisciplined courts in America, one of the most activist courts in America.” Hatch questioned whether Liu would put his own views ahead of settled law, saying, “The Constitution must control government, not the other way around.”

Democrats countered that the senate had confirmed several circuit judges nominated by Republican presidents who had academic rather than judicial experience. Sen. Dianne Feinstein, (D-Calif.) noted that neither Judge Michael W. McConnell (who resigned from the Tenth Circuit in August 2009 to become the director of the Stanford Constitutional Law Center) and J. Harvie Wilkinson III (who taught law at the University of Virginia and edited the Norfolk Virginian-Pilot‘s editorial page for three years before President Reagan appointed him to the Fourth Circuit in 1984) had any judicial experience before becoming appeallate judges.

The discussion of Liu’s credentials offers an interesting prelude to the confirmation hearings of Elena Kagan, President Obama’s nominee to replace retiring Associate Justice John Paul  Stevens on the U.S. Supreme Court. Although Kagan is expected to be confirmed without too much difficulty, oppenents to her nomination are likely to raise the same issues about her academic, rather than judicial, experience.

Money and elections

I didn’t post this until after yesterday’s primary was over, because I didn’t want anyone to think that I was trying to influence voters in any way. But the National Institute on Money in State Politics released a couple of interesting studies recently that examined the intersection of money, incumbency and politics in state legislative elections.

Incumbents who also had a fundraising advantage won 96 percent of the time in the 2007-08 election cycle, according to Peter Quist’s study, The Role of Money and Incumbency in 2007-2008 State Elections. In one-third of the races, incumbents ran unopposed.

Challengers who failed to raise more money than the officeholder won only 8 percent of the time. However, when they did manage to build a bigger war chest, challengers won 53 percent of the time, according to the study.

Moreover, the success rate for incumbents has been slowly creeping upward, from 89 percent in 2001-02 to 92 percent in 2003-04 and 2005-06 to 94 percent in 2007-08. The winning percentage for candidates with the money advantage has been relatively stable, though: 82 percent in 2001-02; 84 percent in 2003-04; 83 percent in 2005-06; and 80 percent in 2007-08.

The other study, Tyler Evilsizer’s Competitiveness in 2007-2008 State Legislative Races, notes that only 22 percent of candidates nationwide had a monetarily competitive race, i.e. where the candidates raised similar amounts of money.

As for West Virginia, roughly a quarter (26.5 percent) of the 117 legislative races in 2008 were monetarily competitive, while 44 percent weren’t competitive, and 29 percent were uncontested. You can see a national map here.

Continue reading…

From delaying votes to delaying hearings

I’ve written before about how long it can take for the entire senate to give consideration to judicial nominees — even non-controversial ones — after they’ve passed out of committee. Recent developments suggest that it may be getting harder to even get a hearing in front of the Senate Judiciary Committee in the first place.

Today, at the behest of Judiciary Republicans, Chairman Patrick Leahy (D-Vt.) agreed to delay the scheduled hearing for two judicial nominees from California. In so doing, he released a statement blasting the maneuver as “petty, partisan politics.”

patrickleahySenate Republicans’ tactics of obstruction and delay know no limit. They have objected to reasonable timetables to consider President Obama’s qualified judicial nominees, and now they are objecting to allowing the Judiciary Committee to conduct hearings in connection with these nominations. Senate Republicans continue their ill-advised protest of meaningful health reform legislation by exploiting parliamentary tactics and Senate Rules, to the detriment of the American people and, in today’s instance, at the expense of American justice. I urge them to reconsider and allow this hearing to proceed as scheduled.

I have accommodated requests from Judiciary Committee Republicans to delay the Committee’s hearing to consider Professor Liu’s nomination. I had intended to hold this hearing two weeks ago, but instead scheduled a hearing for Judge Robert Chatigny, a nominee to the Second Circuit Court of Appeals. When Republicans who had agreed to proceed on the Chatigny nomination then reversed themselves and asked that I postpone the hearing on that nomination, I did so as a further accommodation to them. Those accommodations have met with the same Republican stonewalling we have seen in our efforts to consider judicial nominees since President Obama was elected, including the stalling of 22 judicial nominees favorably reported by the Judiciary Committee and awaiting final Senate approval. Sixteen of those judicial nominees were voted out of Committee without opposition and yet the delay and obstruction continues.

Meanwhile, the number of judicial vacancies continues to grow. Right now, there are 102 vacancies, with 37 nominees pending. On Feb. 1, 2009, just days after President Obama took office, there were 59 total vacancies. So, in the 14 months that Obama has been in office, there have been more vacancies created (43) than filled (19, which includes Associate Supreme Court Justice Sonia Sotomayor). At this rate, by the end of this term, there will be 82 vacancies — or more than nine percent of the 876 federal judgeships.

Continue reading…

State prison population shrinks, but not in W.Va.

A new study published this week by the Pew Center on the States notes that for the first time in almost 40 years, the overall number of people in state prisons in America has gone down. Since 1972, the prison population has exploded, increasing by 705 percent from 174,379 total state inmates nationally to 1,408,830 in on Dec. 31, 2008. (These figures do not include people serving sentences in federal facilities, only state prisons.)

By January 2010, the overall number shrank by 5,739 inmates, or 0.4 percent. Why the sudden change of direction? One reason, the study notes, could be that cash-strapped states are looking for ways to save money, and reducing the number of prisoners has a positive effect on the bottom line. But it’s too soon to conclude that a corner has been turned, the study cautions.

After nearly four decades of uninterrupted growth, an annual drop in the state prison population is worthy of note, no matter the scale of decline. However, it is too soon to say whether the 2009 decline will be a temporary blip or the beginning of a sustained downward trend.

It is possible that this narrow decline is simply seasonal and may adjust upward in the first half of 2010. The nation’s prison population can experience seasonal patterns, with growth tending to be clustered in the first half of the calendar year. The decline in 2009 could be part of a seasonal downward adjustment and an increase in the first six months of 2010 could eliminate the 5,739-person drop. With a decline this narrow, when the population is measured may affect the outcome.

Sadly, West Virginia was not a part of the national decline. Our prison population jumped 5.1 percent over the last year, growing by 308 prisoners. (That’s a pretty small number, but percentage-wise, only Indiana, at 5.3 percent, grew faster.) And this increase came at a time when Gov. Joe Manchin launched a gubernatorial commission on prison overcrowding.

As my colleague Alison Knezevich reported last week, at Manchin’s request, lawmakers passed legislation during the last session that would speed up parole for non-violent inmates. Del. Tim Miley (D-Harrison), chairman of the House Judiciary Committee, estimated that the bill could affect 700 prisoners. The bill passed both houses and is currently awaiting the governor’s signature.

Continue reading…

Judicial nominees: 2012 and beyond?

That’s the time frame that Senate Republicans are using, according to Sen. Mark Begich, D-Alaska, one of several Democratic senators who took to the Senate floor on Tuesday to decry the pace of judicial confirmations. Here’s what Begich said:

The problem and the cynicism of Republican obstructionism is seen nowhere as obviously as in the judiciary. There are currently 103 federal judge vacancies. Several nominees reported out of the Judiciary Committee have been denied votes in the Senate by Republican obstructionism for almost 200 days. In some cases the judicial seat to be filled has been vacant for years. It is clear that—even if they are in denial about who was elected in 2008—our Republican colleagues have their sights set on 2012 and beyond, when they hope to have a huge number of federal court vacancies to be filled by a President more to their liking.

Apparently, being forced to invoke cloture over Virginia Supreme Court Justice Barbara Milano Keenan, who was then confirmed for a seat on the U.S. Court of Appeals for the 4th Circuit by a vote of 99-0, has rubbed a few senators the wrong way. More from Tuesday, from Virginia Sen. Mark Warner:

Justice Keenan was filibustered, in effect, because one Senator placed a hold on her. Consequently, cloture had to be filed. That was despite the strong endorsement Justice Keenan had received from our new Republican governor, Governor McDonnell. I appreciate his support of Justice Keenan. A funny thing happened when we forced the vote both on cloture and the nomination: She was confirmed unanimously. Filibustering a nominee who gets a unanimous vote, something is not right with that. That is not the way this body is supposed to work.

And North Carolina Sen. Kay Hagan:

In fact, there are two judicial nominees on the calendar from North Carolina who would be easily confirmed should they come up with for a vote, Jim Wynn and Al Diaz, nominees for the Fourth Circuit Court of Appeals. They were both approved by the Senate Judiciary Committee in January. But truth be told, we have not just been waiting since January, we have been waiting since 1994. There has been an opening for a North Carolina judge on the Fourth Circuit since 1994. Partisan politics has gotten in the way of filling that vacancy time and again. Finally, we have not one but two qualified judges, supported by both myself and Senator Burr. Let’s bring them up for a vote

And Minnesota Sen. Al Franken:

[Keenan] was then confirmed unanimously, 99 to 0. Yet we are forced to vote for a filibuster. That is nuts. This is a perversion of the filibuster and a perversion of the role of the Senate. It used to be the filibuster was reserved for matters of great principle. Today it has become a way to play out the clock. Some of my colleagues seem more interested in using every procedural method possible to keep the Senate from doing anything then they are in creating jobs or helping Americans struggling in a difficult economy. They seem to actually want the government to fail. Why else delay things you actually agree with?… Let’s give the executive branch and the judicial branch the people they need so we can help government function in the way it is supposed to and reassure Americans that government does work for them.

Continue reading…

Keenan confirmation vote scheduled

BarbaraMilanoKeenanJust like clockwork, the Senate has scheduled a vote tomorrow for Barbara Milano Keenan (right), the Virginia state Supreme Court Justice who was nominated by President Obama in September for a seat on the U.S. Court of Appeals for the 4th Circuit.

Why clockwork? Well, the Senate seems to have settled on four months as the appropriate amount of time for a nominee to an appellate court to wait for a vote after passing out of committee. The Judiciary Committee approved Keenan unanimously on Oct. 29, and lo and behold, four months later, she’s up for a vote. Here’s a look at the circuit judges who have been confirmed, and the lag time between committee approval and their final vote:

David F. Hamilton, 7th Circuit: Six and 1/2 months

Andre M. Davis, 4th Circuit: Four months

Gerald Lynch, 2nd Circuit: Three and 1/2 months

Beverly Baldwin Martin, 11th Circuit: Four months

Joseph A. Greenaway Jr., 3rd Circuit: Four months

Hamilton is the outlier, since Senate Republicans chose to use his nomination to send a message to the president that they are willing to hold his nominees hostage for political gain, even non-controversial centrists like Hamilton.

Last week, Sens. Jim Webb and Mark R. Warner, both D-Va., took to the Senate floor to lobby on behalf of Keenan. Webb noted that when he was sworn in last month, Republican Gov. Bob McDonnell specifically requested that Keenan administer the oath of office, adding:

I would like to respectfully request in the name of good governance and the proper functioning of our constitutional system that our colleagues on the other side of the aisle to allow a prompt vote on her nomination. Justice Keenan was voted out of committee in October of last year, by a unanimous voice vote.  Her nomination is non-controversial.  She has been a dedicated public servant, a fair and balanced jurist, and her nomination has broad bipartisan support.  I believe it is critical that we move forward as quickly as possible to confirm her nomination.

There are currently four vacancies on the Fourth Circuit, more than any other circuit.  The seat that Justice Keenan would fill has been vacant now for more than two years.

[N]ow, in the spirit of pragmatic bipartisanship and good governance, I believe it is time to move past procedural delays that seem to infect us and get on with the business of governing.

I would like to point out that out of 876 federal judgeships there are currently 100 vacancies.  These vacancies delay the administration of justice, they delay the resolution of disputes, and they diminish our citizens’ right to a speedy trial.

It is my understanding that Justice Keenan has broad support in this body, the vote in the Judiciary Committee is evidence of that. In face I would be very surprised if any senator were to vote against her confirmation. Again, I am asking my colleagues across the aisle if they might allow this nomination to advance in a timely way.

I’m guessing that Albert Diaz and James Wynn, two North Carolina judges up for seats on the 4th Circuit who passed out of committee on Jan. 28, have circled the first week of June on their calendars.

Sen. Arlen Specter, D-Pa., also published an op-ed piece last week, lamenting the slow pace of confirmations, particularly in regards to Thomas I. Vanaskie, a federal judge from Pennsylvania up for a seat on the 3rd Circuit.

Continue reading…

Domestic violence = political suicide, part 2

A few weeks ago, I wrote about how two politicians had been ousted after reports of violent incidents with women surfaced. For Scott Lee Cohen, the Democratic nominee for lieutenant governor of Illinois, the mere allegation of domestic violence was enough to make his candidacy politically untenable, and he withdrew from the race days after the news broke.

This week’s blockbuster story, broken Wednesday by the New York Times, is that David A. Paterson, the Democratic governor of New York, apparently intervened in a domestic violence case involving his top aide, David W. Johnson.

Last fall, a woman went to court in the Bronx to testify that she had been violently assaulted by a top aide to Gov. David A. Paterson, and to seek a protective order against the man.

In the ensuing months, she returned to court twice to press her case, complaining that the State Police had been harassing her to drop it. The State Police, which had no jurisdiction in the matter, confirmed that the woman was visited by a member of the governor’s personal security detail.

Then, just before she was due to return to court to seek a final protective order, the woman got a phone call from the governor, according to her lawyer. She failed to appear for her next hearing on Feb. 8, and as a result her case was dismissed.

Two days after the Times’ bombshell, Paterson decided that he would not seek re-election, less than a week after he had formally announced that he was running.

So let’s get this straight: reports that a politician may have used his clout to help a loyal aide and ally who had allegedly assaulted his girlfriend, who had twice taken out domestic violence protective orders against him, were enough to bring a sitting governor’s political future to an abrupt halt.

Just the association with and support for an alleged batterer proved terminal.

Oh, and the New York State Police may be in some hot water, too. Again, from the New York Times:

[New York State Police superintendent Harry J.] Corbitt acknowledged this week that a State Police officer visited the woman in the first hours or days after the episode, at the Bronx apartment shared by Mr. Johnson, the woman and her 13-year-old son. He described the visit as customary in episodes that might attract media attention, an assertion dismissed as false by many inside and outside the State Police. He also said that it was meant merely to offer the woman counseling and tell her she had “options.”

Two days after the woman says Mr. Johnson choked her, ripped off her clothing and prevented her from calling for help, she went to Family Court in the Bronx to seek an order of protection. She complained under oath then, and in a court appearance two days later, that troopers had been pressuring and harassing her not to pursue charges or obtain the order of protection.

She was twice granted temporary orders of protection, but confusion over whether Mr. Johnson had actually been served with the court papers extended the case into February.

The case underscores the importance of diligent service of domestic violence protective orders. The orders themselves do not offer absolute protection from violence, although experts point to statistics that say that they are effective in preventing additional harm. But they do give the victim a firm knowledge that the batterer faces serious consequences if the abusive behavior continues.

Continue reading…

Toyota testimony, day one: What about the electronics?

There was some pretty gripping testimony yesterday before the House Committee on Energy and Commerce, particularly from Rhonda Smith, of Sevierville, Tenn., about her experience when her new Lexus 350 ES sedan suddenly raced to 100 miles per hour in October 2006.

On this Thursday, I had planned on visiting my 85 year old father in Knoxville. I was driving my 2007 Lexus 350 ES from my home in Sevierville down Hwy 66 to I‐40 East. Upon entering I‐40 I accelerated with everyone else, into the flow of traffic. At this point, I merged over into the second lane, NOT going into passing gear.

It is at this time I lost all control of the acceleration of the vehicle. The car goes into passing gear and the cruise light comes on. At this time, I am thinking that maybe the cruise is what has caused the car to accelerate, as my foot is NOT on the gas pedal. I take off the cruise control. The car continues to accelerate. The car is now up to 80 mph. The brakes do not slow the car at all. Now I am at 85‐90 mph. I push the car into NEUTRAL and it makes a revving noise. I push the emergency brake on… nothing helps. I continue hitting and slamming the brakes. Now I am at 85‐90 mph. I look at the traffic ahead to see if I can maneuver in and out of the upcoming cars and trucks, or if I am going to need to put the car into the guardrail and into the trees.

The last time I looked at the speedometer it read 100 mph. At this time, I had the emergency brake on while frantically shifting between ALL the gears (besides park) but mainly had it in REVERSE and with the emergency brake on. I finally figured the car was going to go to its maximum speed and was praying to God to please help me. After about 3 miles had passed, I thought it was my time to die, and I called my husband (on bluetooth). I knew he couldn’t help me in this particular situation, but I just needed to hear his voice. What an awful 911 call he received at work.

At almost exactly 6 miles God intervened. I had not tried anything different that I had frantically tried before to slow the vehicle, yet the car began to slow down ever so slowly. It slowed enough for me to pull to the left median, with the motor still revving up and down. At 35 mph it would not shut off. Finally, at 33 mph I was able to turn the engine off. However, the radio remained on and I was not about to touch ANY button on that car, or ever again.

Smith’s testimony should serve as a harrowing rebuke for all of those people who, in response to reports of cars speeding out of control, suggest that the driver should have just shifted into neutral, or turned the car off.

Incredibly, the dealer told Smith and her husband, in writing, that “when properly maintained, the brakes will always override the accelerator.” Ultimately, an arbiter with the National Center for Dispute Settlement denied the Smith’s claim, and an investigator with the National Highway Traffic Safety Administration told them it was “probably” floor mats, which were the subject of a major safety advisory by Toyota in September 2009.

Smith continued:

In summary, we would like to inform this committee and the American public that we feel we put forth our best effort in 2006 and 2007 to inform Toyota Motor Company and NHTSA of the potential for SUA to become a deadly issue.

Our hopes were that our efforts might help spare the unnecessary injury and loss of innocent lives. However, we failed miserably, all due to Toyota and NHTSA’s uncaring attitude and total disregard for human life.

One would think that Toyota, along with NHTSA’s help, would have stepped up and used some of their massive profits to address this now major, deadly problem.

It is our hope that this testimony will in some way help the families of those killed and those that sustained serious injuries from SUA. We also hope they will somehow benefit from the knowledge that we provided critical information to Toyota and NHTSA showing that the problem was not floor mats but in the electronics of their vehicles at least 3 ½ years ago.

Also on Tuesday, Dr. David Gilbert, an associate professor of automotive technology at Southern Illinois University, told lawmakers that he was able to recreate runaway acceleration, something that both Toyota officials and NHTSA investigators have said is very hard to do, by tinkering with the wiring in his 2010 Toyota Tundra.

The importance of these issues raised in the electronic throttle control system fail‐ safe strategies should not be underestimated. Sudden unintended acceleration of a vehicle a very serious safety concern that should be addressed without delay.

Continue reading…

Domestic violence = political suicide

If we ever needed a reminder that domestic violence crosses socioeconomic lines, we need look no further than headlines from around the country last week.

scottleecohen.jpgFirst, Scott Lee Cohen (right), the Democratic nominee for lieutenant governor of Illinois, dropped out of the race on Sunday after information surfaced about several allegedly violent incidents with women in his past.

As the Chicago Tribune reported:

Since Cohen won the Democratic nomination on Tuesday, it has become widely known that he was accused of abusing his ex-wife and holding a knife to the throat of an ex-girlfriend — a woman who was herself charged with prostitution. He also admits using steroids in the past.

Cohen was arrested in 2005 on domestic battery charges for allegedly pushing his then-girlfriend, Amanda Eneman, against a wall and holding a knife to her throat. The charges were dropped when she failed to show up for a court date. He has denied the allegations and called that relationship tumultuous.

hirammonserrate.jpgThen on Tuesday night, the New York State Senate voted to remove Sen. Hiram Monserrate (right), a Queens Democrat who was convicted of misdemeanor assault in a 2008 incident with his girlfriend. The vote was 53-8 to expel Monserrate, and imperiled the ability of the slim Democratic majority to pass legislation, the Albany Times-Union reported.

Monserrate last month was found “unfit to serve” by a nine-member Senate panel of inquiry that examined the circumstances surrounding a December 2008 incident involving Monserrate’s girlfriend, whose face was badly cut by a broken glass. A Queens judge acquitted him of several felony charges, but found Monserrate guilty of misdemeanor assault.

The Senate panel, which deemed the incident a “crime of domestic violence,” recommended that the full chamber should consider measures to censure Monserrate, expel him or both.

These political downfalls should send a clear message that society has recognized that domestic violence, no matter who commits it, will not be tolerated.