Gavel Grab

Presidents have a prerogative to fill congressionally authorized court vacancies, and for President Obama to do so on the U.S. Court of Appeals for the District of Columbia Circuit does not constitute “court-packing,” scholar Russell Wheeler says by way of rebutting a Wall Street Journal editorial (see Gavel Grab).

Wheeler (photo), an expert at The Brookings Institution on judicial nominations, offers his assessment in an American Constitution Society blog post. He quotes remarks in 1996 by then-Chief Justice William Rehnquist to make a point that Obama has a prerogative to leave his stamp on the D.C. Circuit Court.

Some Republican senators are arguing that the 11-member court should be reduced by three judges, a proposal opposed by Justice at Stake (learn more from Gavel Grab). The court currently has a 4-3 majority of judges appointed by Republicans. An Obama nominee, Sri Srinivasan, was expected to come before the Senate on a procedural vote and perhaps a final vote today.

Justice Rehnquist said in the context of President Franklin D. Roosevelt’s successful efforts to stem anti-New Deal decisions by the Supreme Court through appointments (but not through adding new seats to the court, which critics derided as “court-packing”):

“[T]he doctrine of judicial independence does not mean that the country will be forever in sway to groups of non-elected judges. When vacancies occur … on any of the federal courts, replacements are nominated by the President, who has been elected by the people of Read more

For the first time in seven years the U.S. Senate is poised to seat a new judge on the U.S. Court of Appeals for the District of Columbia, a highly influential court that decides many contentious regulatory issues in the nation’s capital.

The Senate is expected to vote on Thursday on President Obama’s nomination of Sri Srinivasan for the D.C. Circuit, according to a Roll Call article. If Srinivasan is confirmed, it will be a breakthrough for the Obama administration. Because the Senate Judiciary Committee unanimously approved the nomination, the Justice Department official is expected to win confirmation.

Earlier, Senate Republicans twice blocked the president’s nomination of New York attorney Caitlin Halligan to the court, and the 11-member court’s four vacancies are seen by some as symbolic of of increasing partisan warfare over judicial nominations in Washington. Read more

President Obama has nominated four women for federal judgeships, and the White House blog said each nominee would make history if confirmed.

Judge Carolyn McHugh would be the first woman from Utah to serve on the Tenth U.S. Circuit Court of Appeals; Pamela Reeves, in the Eastern District of Tennessee,  and Elizabeth Wolford, in the Western District of New York, would be the first women to sit on those benches; and Debra Brown, in the Northern District of Mississippi, would be the first African-American female  to serve as an Article III judge in that state.

Chris Kang, senior counsel to the president, said in the blog about these and other groundbreaking judicial nominations by Obama, “These ‘firsts’ are important, not because these judges will consider cases differently, but because a judiciary that better resembles our nation instills even greater confidence in our justice system, and because these judges will serve as role models for generations of lawyers to come.” He said each has the required intellect,  integrity and fair-mindedness to sit as a federal judge.

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Many U.S. senators make use of state-based advisory commissions to help them pick candidates for federal judgeships to recommend to the White House. President Obama might have better success in getting judges confirmed if he takes a new approach that involves these panels, associate professor David Fontana of George Washington University suggests.

In a Politico commentary, Fontana urges that Obama talk to senators about selecting non-traditional members for the advisory commissions, so that senators ultimately recommend candidates who better match the criteria pursued by the White House.

Regarding those criteria, Fontana notes as an example, “The president might want judges who have a diverse professional background because, as with demographic diversity, having a range of professional backgrounds can ensure that federal judges bring all perspectives to bear in deciding important cases.” Read more

Lawmakers seem increasingly unable to fill one of their basic constitutional duties, filling judicial vacancies across the country. Instead, senators continue to obstruct President Obama’s judicial nominees, leading to a vacancy crisis in our courts, says Wall Street Journal Washington Bureau Chief Gerald F. Seib in a Wall Street Journal article.

While Obama’s administration should take some of the responsibility for this predicament by not quickly nominating candidates, the “lion’s share of the blame lies with the Senate,” Seib writes.

Senators have historically recommended to the president nominees from their home states for judgeships. However, this process slows down when senators from different parties disagree, and they decline to endorse the nominee or they threaten a filibuster. Read more

In an Atlantic online commentary, legal scholar Garrett Epps examines one reason why judicial vacancies matter. He focuses on the U.S. Court of Appeals for the District of Columbia Circuit, and he maintains that four vacancies on that highly important court are effectively “swaying policy in America.”

Republican senators have blocked President Obama’s nominees to the 11-member appeals court so far, and it has a majority of judges appointed by Republican presidents. Epps takes issue with three key decisions of the court. They involve National Labor Relations Board appointments made by Prsident Obama; a NLRB rule requiring employers to put up a government poster telling workers of their rights; and Food and Drug Administration regulation of cigarette warning labels.

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A significant factor contributing to numerous vacant federal judgeships is Republican senators refusing to recommend potential nominees to the White House, a Huffington Post article reports.

Most news media reporting has focused on conflict-filled showdowns, when Senate Republicans stall or block a judicial nominee chosen by President Obama. But there are 82 vacant federal judgeships, and no one has been nominated for 61 of them, the article by Jennifer Bendery states in exploring a less-discussed political factor in the vacancies.

In fact, “the bigger problem” than Obama lagging in nominating judges “is Republican senators quietly refusing to recommend potential judges in the first place,” Bendery writes.

She cites data from the Alliance for Justice to drive home the point. ”Nearly two-thirds of the vacancies without nominees are in states with at least one Republican senator, Read more

The U.S. Senate’s system for confirming federal judges is “breaking down” and having an impact in Texas, where six federal district court judgeships are vacant, reports a Houston Chronicle editorial.

The editorial urges homestate Sens. Ted Cruz and John Cornyn to take a leading role in ending Senat gridlock over confirming nominated judges, and it chastises a system that it says it caught in “tit-for-tat” thinking:

“Tit-for-tat. It will always be part of Washington, but it has to end when it comes to the Senate’s advice and consent of judges. Voters should not be content with politicians who hold our judiciary hostage in a race to the bottom. About one in 10 seats in the federal judiciary is Read more

It’s past time for Congress and the president to collaborate, compromise and fill vacancies on the federal bench that are causing harm to the justice system, the economy and also to judicial nominees, American Bar Association President Laurel Bellows (photo) writes in a blog for The Hill newspaper. She makes these recommendations:

• For the parties to collaborate and set up-or-down votes on judicial nominees whom the Senate Judiciary Committee has approved unanimously, or with scant opposition;
• For fast-tracking action on 11 nominees left stranded when the 112th Congress adjourned;
• For Senate leaders to give higher priority to filling those 37 vacancies that have been deemed “judicial emergencies” and to reduce the long wait between nomination and votes;
• For President Obama to nominate a candidate for each open judicial seat. There are 86 vacant judgeships. Read more

Federal appeals court nominee Sri Srinivasan (see Gavel Grab) may have “an apparently easy path” to confirmation in the Senate, but that would offer little reassurance that partisan wars over judicial nominees are past, columnist Michael McGough writes in the Los Angeles Times.

McGough cites Republican filibusters of appeals court nominees Caitlin Halligan and Goodwin Liu, along with Democrats’ filibuster of Miguel Estrada, a George W. Bush nominee, to argue for an “end to partisan gamesmanship on judges.”

The confirmation wars have occurred “out of partisan spite or as part of a long game to take out potential Supreme Court appointees of the other party,” McGough suggests. But Halligan and Lieu deserved confirmation, he says, “because 1) they were well qualified, 2) they inhabited a broad philosophical mainstream and 3) they were being nominated for inferior courts that are bound by the Supreme Court’s interpretation of the Constitution and laws.” McGough concludes:

“It’s reassuring that Srinivasan seems on track to be confirmed, but the system is still not operating the way it should. Presidents of both parties should be given considerable deference when they propose professionally well-qualified candidates for the federal courts, Read more