Gavel Grab

The Washington Post’s Fact Checker is at it again. Earlier this week, he took issue with Sen. Charles Grassley’s statement that the D.C. Circuit has a lower workload than others (see Gavel Grab). Now he’s challenging President Obama’s statement about the slow-walking of his judicial nominees.

Obama stated, “Time and again, congressional Republicans cynically used Senate rules and procedures to delay and even block qualified nominees from coming to a full vote. As a result, my judicial nominees have waited three times longer to receive confirmation votes than those of my Republican predecessor.”

The Fact Checker column by Glenn Kessler gives Obama “two Pinocchios” after examining relevant confirmation data. Kessler notes that when looking at the average period from a committee vote to a floor vote on an appeals court nomination, the 1:3 ratio holds up,  but the results are vastly different when looking at the period from nomination to a Senate floor vote. And he says Obama has recorded a slightly better overall rate for percentage of appeals court judges confirmed:

“Leaving aside Obama’s confusing language at the news conference, the president’s record is not three times worse than his predecessor — except in this circumstance. But that’s really not the most enlightening statistic. Depending on how you do the math, in some ways, Obama’s record is slightly better.”

Obama has nominated three candidates (photo) for vacancies on the U.S. Court of Appeals for the District of Columbia Circuit (see Gavel Grab). The nominations followed the Senate’s earlier unanimous confirmation of Sri Srinivasan for the same court. A Kansas City Star editorial now Read more

President Obama’s announcement of three nominees for a highly influential appeals sparked a wave of media coverage nationwide, focusing attention on partisan politics that has stalled or blocked some Obama judicial nominees. In some accounts, the new nominations were viewed as a test for Obama and the Senate.

In one of the first editorial board responses from a major national newspaper, the New York Times commended the simultaneous nominations strategy, praised the nominees’ qualifications and said that it is time to end partisan obstructionism:

“While Republican obstructionism is largely to blame, Democratic fence-sitting has also been a problem. The White House has often taken too long to make nominations, and the Judiciary Committee has rarely been speedy about moving them to the floor. The Senate majority leader, Harry Reid, has talked about eliminating the 60-vote threshold to approve judicial and executive nominations, yet he has not done so. These new nominations are a test for him and the Democrats as well as the Republicans. The Senate should provide its advice and consent on them soon. If not, Mr. Reid and his caucus should use their power to require a simple-majority vote for all confirmations.”

On Tuesday, Obama introduced the trio of nominees to the nation in an unusual Rose Garden event. Justice at Stake said the nominations to the U.S. Court of Appeals for the District of Columbia Circuit give the Senate a new opportunity to show bipartisanship and strengthen our courts (see Gavel Grab).

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If a flurry of news media reports is a sign, President Obama’s expected announcement soon of three nominees to the U.S. Court of Appeals for the District of Columbia will put judicial confirmation politics in a rare spotlight.

Although many Americans may not be familiar with it, the court is widely considered the second most influential appeals bench in the nation and a stepping stone for the Supreme Court. Some Republican senators are pushing to reduce the 11-member D.C. Circuit court by three judgeships and are accusing Obama of “court-packing.” And if Republicans pursue a showdown with the president, such as an attempt to filibuster three nominees, Senate Democratic leaders could move to change procedural rules in response.

Gavel Grab mentioned on Tuesday a news report that Obama plans to nominate simultaneously three individuals for the vacancies. On Wednesday, a White House blog post by Dan Pfeiffer, a senior adviser to the president, fired back at advocates of shrinking the D.C. Circuit. “[T]his is court packing in reverse and a cynical attempt to manipulate the third branch of government,” Pfeiffer wrote. Read more

At a time of intense political partisanship over some of President Obama’s judicial nominees, the president soon will  announce three nominees for the nation’s second most influential appeals court, the New York Times reports, in a move that could cause political tensions to boil over.

Leading Republicans have warned against Obama efforts to “stack” the U.S. Court of Appeals for the District of Columbia Circuit, while some independent analysts have debunked that idea and contended it is a president’s prerogative to fill congressionally authorized judicial vacancies (see Gavel Grab).

Times reporter Michael Shear calls  Obama’s expected nomination of three jurists to the 11-member, Washington-based court “a move that is certain to unleash fierce Republican opposition and could rekindle a broader partisan struggle over Senate rules.”

The extent to which partisan politics has come to slow or obstruct judicial nominations is documented in a USA Today editorial. While neither political party has “clean hands,” Senate Republicans “have taken obstructionism [of Obama nominees] to a new level,” the editorial says. 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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Shortly before a Senate committee was to begin a high-profile hearing today on a judicial nominee, a prominent Republican attorney lamented how politicized the judicial confirmation process has become.

“We’ve lived through this atmosphere since the confirmation hearings of Judge Bork,” Kenneth Starr (photo) told the New York Times, mentioning Democrats’ defeat in 1987 of Supreme Court nominee Robert Bork. “I wish we could get past the era of such a deeply politicized process.”

President Obama’s administration is pushing for confirmation of Justice Department official Sri Srinivasan to the U.S. Court of Appeals for the District of Columbia Circuit “with a coordination and an energy that echo a Supreme Court nomination fight,” the Times article said. If it fails, a confrontation over judicial nominees may lie ahead.

A Washington Post editorial, meanwhile, condemned what its headline branded as the “Republicans’ D.C. Circuit barricade.” There are four open seats on the influential 11-member court, and another of Obama’s nominees withdrew after Republicans twice filibustered her nomination (see Gavel Grab about the nomination of Caitlin Halligan).
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To some analysts, President Obama’s nomination of Justice Department official Sri Srinivasan to a Washington, D.C.-based appeals court represents more than another skirmish. It could represent a test of whether the Senate can effectively handle judicial nominations any longer, they suggest.

Given significant bipartisan support for Srinivasan in the legal world, and Obama’s failure to date to win confirmation of a single nominee to the U.S. Court of Appeals for the District of Columbia Circuit, the nomination becomes a “moment of truth on D.C. Circuit nominations,” according to a Washington Post blogby Jonathan Bernstein.

“If 41 or more Republicans simply will not vote for anyone to the left of John Roberts, the only option left to Democrats will be Senate rules reform,” Bernstein writes. “On the other hand, if Srinivasan can be confirmed, Republican claims that they have objected only to specific nominees for specific reasons can be taken more seriously.” It takes 60 votes to cut off a filibuster of a motion to proceed to an up-or-down vote; Chief Justice John Roberts formerly sat on the appeals court.

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Despite bipartisan pleas from President Barack Obama for Senate Republicans to end their filibusters of his nominees, judicial candidates continue to wait extraordinary lengths of time to be confirmed, states a New York Times editorial.

Compared to his predecessors, the average wait on a confirmation vote for Obama’s judicial nominees has been 227 days. President George W. Bush’s nominees waited an average of 175 days, according to the editorial.

Senate Republicans filibustered New York attorney Caitlin Halligan twice, leading her to withdraw from consideration last week (see Gavel Grab). If Republicans won’t stop their “malicious behavior,” then Democratic senators must step up and change Senate rules to prohibit filibusters on nominations, the editorial argues. Read more

Both political parties are to blame for the Senate’s “habit of filibustering judicial nominees,” a practice that “must end,” a Los Angeles Times editorial declares.

The editorial denounces as “outrageous” what it calls the GOP “gamesmanship” that has blocked an up-or-down vote on President Obama’s nomination of New York lawyer Caitlin Halligan to the second most influential federal appeals court, in the District of Columbia (see Gavel Grab).

But the Senate Democratic leadership also is at fault, the editorial contends, as it “can’t bring itself to repudiate the undemocratic institution of the filibuster.” Rules changes adopted earlier this year didn’t go far enough, the editorial adds. It concludes: Read more

Although the Senate confirmed two federal judges on Monday, the remaining 85 vacant federal judgeships and the resulting strain on the nation’s courts continue to get extensive media attention nationally.

“Think of a military operating with 65 percent of its capacity,” Carl Tobias, a University of Richmond law professor, told the Washington Times. “There is a mentality [in Congress] that the judiciary is another federal agency. Well, no, it’s not. It’s a third branch of government, and they need the respect that’s due them.”

The article was headlined, “Lingering vacancies burden justice system; nominations lag, cases grow.” It reported that the Senate confirmed nominations of Richard Gary Taranto for the U.S. Court of Appeals for the Federal Circuit, and for the U.S. District Court for Nevada, Andrew Patrick Gordon.

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