The nonpartisan Congressional Research Service has released an important new report that details Barack Obama’s record on nominating judges during his first term. It’s no surprise: Republican obstruction against his selections was unprecedented. For example:
President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year (i.e., more than 182 days).
A quick look at the report’s summary confirms that Obama’s nominees have been treated more roughly than those of Presidents Reagan, Bush, Clinton, and the other Bush.
That’s only half the story. George H.W. Bush had to deal with an opposition party Senate for his entire first term, and Bill Clinton and George W. Bush had that during about half of their first terms. It’s at least plausibly legitimate for opposite party Senators, when they have the majority, to argue that they should have a larger role in filling judicial vacancies, and to act accordingly. At the very least, if they simply oppose some of those nominees, they will defeat them in “up or down” votes.
But Obama, like Ronald Reagan, had a same-party Senate majority during his first term. He should have had among the best results over any recent president, all things being equal.
What changed when Obama took office, however, was the extension of the filibuster to cover every single nominee. Republicans didn’t always vote against cloture (or even demand cloture votes), but they did demand 60 votes for every nominee. That’s brand new. It’s true that Democrats filibustered selected judicial nominations during the George W. Bush presidency, but only at the circuit court level, and not every single one.
That meant that despite solid Democratic majorities and solid support from those Democrats, Obama’s judicial approval statistics are basically the worse of any of the recent presidents. He doesn’t show up last on every measure — for example, George H.W. Bush had a lower percentage of district court nominees confirmed — but he’s fourth or fifth out of five of these presidents on almost every way that CRS slices the numbers, and it adds up to by far the most obstruction faced by any recent president.
And remember: the losers here aren’t just the president and liberals who want to see his judges on the bench. Ordinary people who just want to get their legal matters taken care of promptly have suffered because of all the vacancies on federal courts.
It’s really a disgrace. Especially those picks that were delayed for months, only to wind up getting confirmed by unanimous votes. Especially the foot-dragging on district court nominees. Just a disgrace.
By: Jonathan Bernstein, The Plum Line, The Washington Post, May 3, 2013
Confronted by record judicial vacancies and unprecedented Senate obstruction in filling our courtrooms, the White House Monday is convening a summit meeting of 150 advocates and community leaders from across the country — to demonstrate that the courts are crucial for our nation.
Regardless of where you live, or what issues you care about, all Americans deserve a judiciary that works.
Why Monday? A short-lived Senate deal to speed the pace of some judicial nominees expires that day. Yet right now, roughly 250 million Americans live in a community without enough judges on the bench. Much more needs to be done.
The White House summit reaffirms that progressives at all levels, and from all corners, are deeply committed to filling our nation’s courtrooms with qualified judges quickly — today and in coming months.
A record number of courtrooms are not functioning because there are not enough judges seated to do the work of the American people. This includes 19 empty federal bench seats in 16 states that could be filled today.
Our nation’s courts — where Americans vindicate their most cherished constitutional rights — are under siege by conservatives. As we have seen over the past few months, Senate Republicans have significantly stalled votes on qualified nominees — including ones with broad bipartisan support — just for the sake of obstruction. Many have later been approved by significant margins.
Conservatives have long made the courts a priority. When in power, they have actively worked to fill the bench with judges who share a conservative ideology — one increasingly out of the mainstream. So it should be no surprise that Senate Republicans are so adamant about blocking any progress on filling our nation’s courts today.
The third branch of government has for too long been neglected in politics — particularly by liberals. Yet it plays a defining role in the American story. And progressives have a huge stake in making sure our courtrooms have a full complement of judges familiar with our issues to make the tough calls.
Every issue progressives care about today ends up in court. From education and immigration to the right to work; from clean air, water and food, to the right of the laws of the land to apply equally to all Americans; from protecting the right of our elected representatives to writing laws that protect consumers and providing for our health.
Fortunately, progressives are rising to the challenge. We need judges confirmed now, to be sure. But what we really need — and what we are doing — is building a long-term foundation among the nation’s progressives, on all issues, to care about the courts. Because they matter for all that we stand for.
It’s a foundation motivated by basic values and interests, not just short-term political tactics. We are engaging new groups of progressives to integrate issues involving the courts into their daily work — in their local communities and online — for the long term.
If you care about your issue, you should care about the courts. Or else our hard-fought gains will be undone by an increasingly conservative judiciary.
We know this strategy works. Consider, in just a few days, a groundswell of support forced the Susan G. Komen Foundation to reverse a politically motivated decision to end its funding relationship with Planned Parenthood. Tens of thousands of progressives organized and made their voices heard — online, with small donations and in communities nationwide — and achieved results.
The same thing happened last fall when Bank of America backed down from imposing a monthly $5 debit card fee after an online change.org petition collected 300,000 signatures. This same energy essentially fuels the Occupy movement.
This is a strategy that works especially well for defending the foundational principles of our democracy that progressives care about — like fully functioning courts.
Voters organizing to make their voices heard is the only thing that can counter the power of money-driven advertising in politics. It’s the very essence of a system that works for all Americans — not just the wealthy few.
By: Andrew Blotky, Opinion Contributor, Politico, May 6, 2012
A racist email sent around by Richard Cebull, the chief US district court judge in Montana, not only showed blatant disrespect for the president of the United States but also may have broken federal ethics rules. Cebull, who was appointed to the court by George W. Bush in 2001 and became chief judge in 2008, appears to have violated the US Code of Judicial Conduct on at least one count with his behavior, legal experts say.
Cebull sent the nasty email about President Obama on Feb. 20 to six of his “old buddies,” as he put it. The subject line read: “A MOM’S MEMORY.” He used his official court email account, according to the Great Falls Tribune, which first exposed the email on Wednesday. “Normally I don’t send or forward a lot of these,” he wrote, “but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.” The enclosed “joke”—suggesting that the racially mixed president is the spawn of a dog—read:
“A little boy said to his mother; ‘Mommy, how come I’m black and you’re white?’
“His mother replied, ‘Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!’”
Cebull denies he’s a racist, and says that the email wasn’t intended to be public. But on Wednesday he admitted publicly that the email was both racist and motivated by partisan politics. “The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan,” he said. “I didn’t send it as racist, although that’s what it is. I sent it out because it’s anti-Obama.”
The US Code of Judicial Conduct mandates that a judge “should personally observe high standards of conduct so that the integrity and independence of the Judiciary are preserved.” It also says that a judge “should avoid impropriety and the appearance of impropriety in all activities”—which applies to both professional and personal conduct. With regard to politics, it says judges “should refrain from partisan political activity” and “should not publicly endorse or oppose a partisan political organization or candidate.”
Where to draw the line between appropriate and inappropriate speech by judges is a complicated matter, says Jeffrey M. Shaman, a judicial ethics expert at DePaul University College of Law. But there seems to be little doubt that Cebull crossed over the line. “Offensive, racist speech such as this clearly diminishes public confidence in the integrity and impartiality of the judiciary, and therefore should be considered a violation of the Code of Judicial Conduct,” Shaman told me. “Judge Cebull ought to know better, and his circulation of such a disgusting message makes one wonder if he is competent to serve as a judge.”
What might the consequences be for Cebull?
“While I certainly see why this type of joke raises serious and legitimate concerns, I am not convinced that it warrants punishment beyond the current (and justified) public criticism,” wrote George Washington University legal scholar Jonathan Turley on Thursday. “The judge is claiming that he thought he was sending this to a handful of friends. It would be akin to a bad joke at a party being repeated later.”
Turley notes that in 2009 a judicial council cleared Chief Judge Alex Kozinski of the 9th US Circuit Court of wrongdoing after an investigation into sexually explicit materials (involving farm animals) found on the judge’s personal website. But the council did officially find that Kozinski had acted with “carelessness” and was “judicially imprudent.”
In Tuesday night’s State of the Union Address, President Obama called on the Senate to “put an end” to the unprecedented obstruction of his judicial and executive branch nominees, insisting that “neither party has been blameless in these tactics.” He was right to call out the problem, but he was wrong that it’s a bipartisan issue. It’s fine for the president to be magnanimous, but the fact is only one party has systematically held hostage even the most basic tasks of governing in the hopes of making minor political gains. And that party is not the president’s.
The nominations crisis that we face today exists largely because it can easily fly under the radar—and the GOP politicians behind it know that. This Republican Congress’s intransigence has caused harm beyond the very public battles over the debt ceiling and tax cuts for millionaires. Under the unglamorous cover of judicial and executive branch confirmations, the Senate GOP has launched a campaign of strategic obstruction to prevent parts of the federal government from functioning at all.
This became clear in the relatively public battle to confirm Richard Cordray to head the Consumer Financial Protection Bureau. Senate Republicans admitted they had no problem with Cordray himself. Instead, all but two stated in a letter to the president that they would refuse to confirm him unless the new, congressionally created agency he was nominated to head was first substantially weakened. It was an unprincipled attempt to legislate via the Senate’s power of advice and consent, which the president rightly sidestepped by installing Cordray with a recess appointment.
But the Cordray nomination was just the tip of the iceberg. With far less public attention, the GOP has been decimating the nation’s courts, causing the judicial branch to face a historic vacancy crisis and Americans seeking their day in court to face unconscionable delays. This crisis is largely due to the chronic inaction of the Senate, which has been crippled by the Republican minority’s abuse of the chamber’s rules to block even consensus nominees from getting a yes-or-no vote.
More than 10 percent of all district and circuit court seats in the country are now or will soon be vacant, in what is the longest period of historically high vacancy rates in 35 years. Thirty-two of these open seats have been labeled “judicial emergencies” by the Administrative Office of the U.S. Courts. The term isn’t bureaucratic hyperbole. As the number of criminal cases surges—a 70 percent increase in the past decade—civil cases are necessarily put on the back burner, resulting in often years-long delays for Americans seeking justice in consumer fraud, copyright infringement, discrimination, civil rights, and other civil claims. Judges in their 80s and 90s have continued working to keep the system running. One told the Washington Post last year, “I had a heart attack six years ago, and my cardiologist told me recently, ‘You need to reduce your stress.’ I told him only the U.S. Senate can reduce my stress.”
Outside of the Senate, there’s near-unanimous agreement that the current pattern of obstruction needs to end. Legal groups and prominent judges across the political spectrum—including Chief Justice John Roberts—have urged that partisan politics be set aside for the good of the justice system. But instead, Senate Republicans have dug in their heels. Once being confirmed by the Judiciary Committee—usually without opposition—President Obama’s circuit court nominees have waited a staggering average of 136 days for a vote from the full Senate, compared to just 30 days for President Bush’s nominees at the same point in his presidency. For district court nominees, historically confirmed quickly and easily except under the most extraordinary of circumstances, the average wait after committee approval has been 90 days under Obama, in contrast to 22 days under Bush. Even among the nominees who were fortunate enough to be confirmed last year, more than a quarter were holdovers from 2010, denied votes from the full Senate until the year after they were approved by the Judiciary Committee.
Meanwhile the dry numbers of the vacancy crisis obscure its devastating impacts. Cases that require urgent resolution face grueling delays and occasionally put on indefinite hold. In Utah, Dave Calder’s two-year-old daughter died in 2005, when a gas can exploded inside his trailer, leaving him with severe burns over a third of his body. After he sued the maker of the faulty can in 2007, he had to wait two and a half years for a jury verdict. In Merced, California, 2,000 citizens who filed suit over toxic chemical contamination stemming from a 2006 flood are still awaiting resolution, and only one civil trial has been held in the matter.
Republicans in this Congress have again and again put the politics of obstruction over the good of the American people. President Obama was right to call out the problem, but he should have put a name to it. Americans deserve a Senate that, at the very least, does the basic job it was hired to do. When it comes to confirming nominees, it is clear which party has been shirking its duties.
By: Marge Baker, U. S. News and World Report, January 27, 2012
There has been no shortage of wacky ideas from the Republican candidates, but Newt Gingrich’s attacks on the judiciary are truly far out on the lunatic fringe of right-wing politics.
At first he confined himself to merely railing against the independence of the judiciary, without which due process simply cannot exist. Recently, he’s started talking about arresting judges who issue rulings he doesn’t like. Intimidating judges used to be a criminal offense. Now it’s a campaign plank and a Sunday morning sound bite.
On the CBS News program “Face the Nation” yesterday, Mr. Gingrich said Congress should compel judges to testify about any decision that annoys the majority party on Capitol Hill. He said he would send U.S. Marshals to arrest them if they did not willingly come to testify. (Marshals, for what it’s worth, are charged with protecting federal judges, who get hundreds of death threats a year.) Mr. Gingrich is not the first politician to say shockingly inappropriate things about federal judges. In 2005, Tom DeLay, who was the Republican House Majority Leader, threatened retribution against the judges who ruled against his wishes in the Terri Schiavo case.
And that same year, John Cornyn, a Texas Republican, attributed episodes of courthouse violence to distress over judges who make “political decisions yet are unaccountable to the public.” This was shortly after a career criminal tried to shoot his way out of an Atlanta trial, killing the judge in the process. And after a deranged man murdered a Chicago judge’s mother and husband because the judge had dismissed his lawsuit.
But Mr. Gingrich takes the attack on the judiciary farther than any other national figure I’ve heard, at least since the Jim Crow days. He’s actually gone so far as to suggest Congress impeach uncooperative judges. Michael Mukasey, the former attorney general who served under George W. Bush, called Mr. Gingrich proposals “dangerous, ridiculous, totally irresponsible, outrageous, off the wall.”
Dangerous and irresponsible is right, for many reasons—but I’ll just give you two. One is that Mr. Gingrich’s proposal opens the door to Congress firing and hiring judges each time power changes hands between the political parties. Judges have lifetime terms to protect them from exactly this kind of pressure. Second, it would effectively eliminate the role of the Supreme Court as the ultimate arbiter of constitutionality.
Mr. Gingrich has referred several times to Thomas Jefferson’s elimination of federal judgeships at the turn of the 19th century. He presents that as an uncontroversial move, when in fact it was part of a highly partisan attempt to rescind his predecessor’s judicial appointments. He’s also fond of saying that the Supreme Court’s power of judicial review, established during Jefferson’s presidency with the seminal case Marbury v. Madison, has been “grossly overstated.”
That statement alone should turnoff primary voters. Marbury v. Madison was a founding decision for a fledgling democracy that had shed its blood to get away from a law that was subject to the will and whim of a political figure—the King of England.
By: Andrew Rosenthal, The New York Times, December 19,2011