Filling judicial vacancies to protect the progressive legacy
What could never happen, finally did.
For more than 30 years the Democratic Senate caucus feebly stood by as Republicans seized control of the federal courts. Now, however, faced with a GOP filibuster of nominees for three vacancies on the appeals court that could determine the fate of most of President Barack Obamaâ€™s initiatives, the Democrats have at last responded.
The Democratic Senate majority last month eliminated the 60-vote requirement to end filibusters against presidential nominees to the lower federal courts and the executive branch. With this, they blocked a key element of the GOPâ€™s long-term strategy to overturn the progressive legislative and judicial advances of the past 50 years, and prevent new Democratic initiatives.
Five years into Obamaâ€™s tenure, Democratic judicial appointees are still barely even with the number of active Republican judges. There are 93 vacancies, including 37 judicial emergencies as of January 7, with 53 nominations pending. If Obama is to preserve President Franklin D. Rooseveltâ€™s legacy â€“ as well as his own — against the many hostile judges now on the bench, he and the Senate will have to act quickly.
For if the GOP retakes the Senate in November, few of the presidentâ€™s nominees will be confirmed in 2015-2016. The fate of progressive legislative and regulatory programs will then be in the hands of judges chosen by the next president.
Ronald Reaganâ€™s election in 1980 spearheaded this effort, orchestrated by Reagan counselor Edwin Meese III. Meese sought to dominate the federal courts with a two-pronged strategy: appointing youthful ultraconservatives, who could serve 30 to 40 years on the bench, and keeping liberals and moderates off it.
The strategy succeeded. There was little Democratic opposition — except for the campaign against Judge Robert Borkâ€™s Supreme Court nomination in 1987. Beginning with Reagan and continuing through Presidents George H. W. Bush and George W. Bush, Republicans appointed to the lower courts more than 900 mostly young arch-conservative judges — including Bork, 45; Michael Luttig, 37; Brett Kavanaugh, 41, and Kenneth Starr, 37. They also appointed Chief Justice John Roberts, 50, and Justices Antonin Scalia, 50, Clarence Thomas, 45 and Samuel Alito, 55. Distinguished moderates like Philip Lacovara and Judith Whittaker were rejected.
Republican presidents have appointed seven Supreme Court justices, approximately 190 appellate judges and 700 district judges. By January 2009, 59.5 percent of all federal judges were Republican appointees, and they had solid majorities on 10 of the 13 courts of appeals. Democrats had a small majority on just one circuit.
The defensive prong of the Reagan-Meese strategy also worked well. Though neither President Bill Clinton nor Obama demonstrated any interest in tilting the bench to the left — they sent up mostly moderate nominees — the Republicans still tried to block as many as possible.
The GOP controlled the Senate for six of Clintonâ€™s eight years in office. During that time, Republicans blocked 45 percent of Clinton’s appellate nominees, compared to only 26.3 percent of Reagan-Bush nominees during the six years of Democratic control. When Clinton left office, Republican judges still dominated the federal court. The GOPâ€™s obstructionism led to 100 vacancies, including numerous judicial emergencies — districts with too few judges for the number of cases — in the hope that the next president would be a Republican.
Thanks to the Supreme Court in 2000, that hope was fulfilled. Within months of taking office. President George W. Bush nominated a dozen appellate court nominees, chosen largely from a list compiled by zealous Federalist Society members within the administration. Almost all these judges were ultimately confirmed.
By the end of Bushâ€™s two terms, he had appointed more than 300 judges, including some of the nationâ€™s most conservative. They included Brett Kavanaugh, Starrâ€™s chief aide in the Whitewater-Monica Lewinsky investigations, and Jay Bybee, who signed the controversial 2002 Justice Department torture memos.
Most were confirmed relatively easily. But several sparked bitter conflicts leading to 10 Democratic filibusters. At one point, then-Senate Majority Leader Bill Frist (R-Tenn.) threatened to abolish the filibuster by a simple majority vote — the â€śnuclear option.â€ť
The bipartisan â€śGang of 14″ senators was able to evade this action when the group crafted a compromise in May 2005, by which five of the 10 filibustered nominees were confirmed. It was also agreed that neither party would filibuster judicial nominees except in â€śextraordinary circumstances,â€ť with an apparent understanding that ideology would not be considered â€śextraordinary.â€ť The Republicans predictably chose the most extreme: Janice Rogers Brown, William Pryor, Deborah Owen and a year later, Kavanaugh.
When Obama took office in 2009, the Republicans again resorted to obstructionist tactics. Despite the apparent understanding about the irrelevance of ideology, Senator Lindsay Graham (R-S.C.), one of the Gang of 14, attacked Goodwin Liuâ€™s nomination to the Ninth Circuit — primarily because he had testified against Alitoâ€™s Supreme Court nomination. Fellow â€śGangâ€ť members Senators Olympia Snowe (R-Me.) and Susan Collins (R-Me.) criticized what they called Liuâ€™s â€śactivist philosophy.â€ť Ultimately, 13 Obama nominees have been forced to withdraw.
Like Clinton, Obama initially sent up relatively few nominees, though the vacancies and judicial emergencies rose sharply. Lately, though, he has stepped up the pace. Yet, because of Republican delaying tactics, Democrats still have only 50.5 percent of the total judges. Meanwhile, vacancies have risen to more than 65 percent; at a comparable point in the Bush administration, vacancies had fallen by 39 percent. As of January 7, there were still 16 appellate and 77 trial court vacancies, with 9 pending appellate and 44 district court nominees.
In total, roughly 11 percent of all federal judgeships are still vacant, with 36 judicial emergencies. Before the Democratsâ€™ filibuster repeal, the Senate had confirmed only 76 percent of all Obama nominees, compared to 90 percent during a comparable period in the Bush administration.
In addition, for the first time, district judges have been routinely filibustered. There have been only 23 cloture votes in U.S. history for district judge nominees — and 20 have been for Obama nominees.
Equally troubling is the Republican abuse of the blue slip system, a procedure that allows senators from either party to block a judicial nominee from his or her state. This traditional courtesy is now being extended by Judiciary Committee Chairman Pat Leahy (D-Vt.), but other chairmen have disallowed it.
During the Bush administration, for example, Senator Orrin Hatch (R-Utah) served as chairman, and he abolished the blue slip system entirely, replacing it with a perfunctory â€śconsultation.â€ť During Clintonâ€™s Democratic administration, however, when Hatch also served as chairman, he reinstated the procedure after it had been relaxed. Leahy, a traditionalist, has reinstated the system in full force — and the Republican senators have taken full advantage of it.
In an unparalleled abuse of the blue slip privilege, 90 percent of the federal court vacancies that Obama is now unable to fill are in states with a Republican senator. In Texas, the two Republican senators have blocked all nominations to the two vacant appellate seats and six judicial emergency district judgeships. Six Arizona emergency district nominees have also been blocked. All these vacancies occurred after Obama was elected.
The latest controversy, which led to the â€śnuclear option,â€ť was over three vacancies on the D.C. circuit. Republicans first filibustered Caitlin Halligan’s nomination to the D.C. circuit — she subsequently withdrew — even though there was nothing that was “extraordinary” or even ideological about her. Halliganâ€™s sin was that as New York State solicitor general in 2003, she had defended a gun control law — as instructed by the state attorney general.
The Republicans did allow one D.C. circuit nominee to go through. Sri Srinavasan, the former principal deputy solicitor general. Srinavasan, a corporate lawyer, had served in both the Bush and Obama administrations, and had clerked for Republicans J. Harvie Wilkinson on the Fourth Circuit and Justice Sandra Day O’Connor.
This produced a 4-4 split among the courtâ€™s active judges, with three seats open on the 11-member court. The Republicans refused to confirm any of Obama’s nominees for these seats, arguing that D.C. Circuit judges were underworked and the court needed no new judges — a claim virtually no one took seriously.
Since compromise seemed impossible, the Democrats finally exercised the “nuclear option” and abolished the 60-vote threshold to end a filibuster for lower court federal judges.
The Republicans based their argument that no more judges were needed on the DC Circuit on the extensive — and, in the eyes of some observers, excessive — use of senior circuit judges, retired judges who choose to sit on cases, and who then become part of the regular case allocation process.
In the D.C. Circuit, Chief Judge Merrick Garland has reported that the six senior judges have sat so often that they are the equivalent of 3.25 active judges. Five are Reagan and George H.W. Bush appointees and on the far right of the political spectrum. The sixth, Harry Edwards, was appointed by President Jimmy Carter, but does not sit often.
Had no Democratic appointees been added, there would actually have been a de facto 7 or 7+ to 4 Republican majority — overwhelming the 4-4 split among active judges on which the media have concentrated. Even with the three Democratic nominees confirmed, Democratic judges appointees do not really have a 7-4 majority, as some have said, but because of the largely ignored senior judges, only a roughly 7+ Republican to 7 Democratic split.
Had the Democrats not taken the â€śnuclear optionâ€ť and changed the filibuster rule , the de facto 7+-4 Republican majority on the D.C. circuit would have been fatal to Obama’s legislative and regulatory initiatives, past and future. Armies of expensive lawyers and lobbyists have already begun their assault on the Obama regulations and laws.
Almost all these Obama administration cases will be reviewed by the D.C. circuit. Since the late 1980s, when Republican appointees filled a majority of seats on the D.C. court, it has been a graveyard for regulatory measures — regardless of which administration issued them. The Supreme Court will have the last word in some of these cases, but most are unlikely to be reviewed by the High Court, for it only handles only about 50-60 federal cases, from all the circuits, each year. So the D.C. circuit’s rulings in many cases, the law.
If the Republicans win the Senate in November, Obama is unlikely to have additional judges confirmed in the last two years of his administration, despite the filibuster reform and even though there are still crucial vacancies and emergencies. So it is imperative that he send up as many nominees as possible before the summer of 2014.
The Judiciary Committee and the Democratic leadership, however, will have to move quickly to get more than a handful confirmed. Even with this filibuster reform, it is still all too easy to use up the little time available for Senate business — as the Republicans have been proving in their retaliation for the â€śnuclear option.â€ť
It may also be necessary to abolish the blue slip system — just as Hatch did during the Bush administration. So far, Leahy has refused, saying he would do so only if senators â€śabusedâ€ť it. Given the Republicansâ€™ refusals to approve any nominees, or even to consider proposing any — as well as their other obstructionist tactics during Obamaâ€™s presidency, how much more can the system be abused?
Leahy, as chairman, has an obligation not to allow politically partisan senators to deny criminal defendants and civil litigants their constitutional right to due process of law. Confirming enough capable judges to the federal bench involves far more than just a party squabble. Tens and perhaps hundreds of thousands of people are being denied justice because of lengthy delays due to the many judicial vacancies and emergencies.
When will Leahy take off the gloves?
PHOTO (TOP): Senate Majority Leader Harry Reid (D-Nev.) (R) and Senator Charles Schumer (D-N.Y.) hold a news conference on Capitol Hill in Washington, November 21, 2013. REUTERS/Gary Cameron
PHOTO (INSERT 1): President Ronald Reagan with Ed Meese in the Oval Office, October 1981. REUTERS/Courtesy Reagan Library
PHOTO (Insert 2): President Barack Obama speaks from the Rose Garden of the White House to announce his three nominees to fill vacancies on the United States Court of Appeals for the District of Columbia in Washington June 4, 2013. The nominees will be attorney Patricia Ann Millett (R), Georgetown law professor Cornelia Pillard (behind Obama) and U.S. District Court Judge Robert Leon Wilkins (L). REUTERS/Kevin Lamarque
PHOTO (INSERT 3): Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) (R) and Senator Chuck Grassley (R-Iowa), confer in Washington, December 11, 2013. REUTERS/Gary Cameron