Judicial Obstruction During President Obama's First Two Years: Updated Reports

As a service to those writing about the crisis of judicial nominations during the final weeks of the 2010 lame-duck Congress, Alliance for Justice is reissuing and updating several recent reports on the record of Republican obstruction and the increasingly dire number of judicial emergencies plaguing the federal courts.
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Judicial Obstruction During President Obama’s First Two Years:
A Compilation of Alliance for Justice Reports

During the Obama Administration’s first two years, Republicans in the Senate have implemented a strategy to delay and obstruct his judicial nominations to the Courts of Appeals and District Courts, contributing to the severe staffing crisis in the federal courts. The Republican tactics are no mystery. As Minority Leader Mitch McConnell (R-Ky.) has told the New York Times, “I am amused with [Democrats’] comments about obstructionism. . . . I wish we had been able to obstruct more.” (1)

The level of Republican obstructionism during the first two years of the Obama Presidency is unprecedented, as demonstrated in the attached Alliance for Justice reports. As of November 23:

  • The rate at which President Obama’s judicial nominees have been confirmed is significantly lower than it was for the five previous presidents, both in aggregate numbers (41 judges) and in the percentage confirmed (­43% of nominations).
  • President Obama has seen a smaller percentage of his nominees confirmed at this point in his presidency than any president in American history.
  • During President Obama’s first two years, the number of judicial vacancies has nearly doubled, from 55 to 108, whereas under Presidents Bush and Clinton, the number of vacancies declined from 80 to 59 and from 107 to 68, respectively, in the same period.
  • The political motivation for the Republicans’ tactics of delay and obstruction are made clear by the fact that 16 of the 23 nominees currently being blocked on the Senate floor were reported out of the Senate Judiciary Committee on unanimous, bipartisan votes, and another sailed through with only one Republican in opposition.
  • The number of “judicial emergencies,” as defined by the Administrative Office of the U.S. Courts, has dramatically risen from 20 at the beginning of the Obama term to 50. Thirty states face the situation where there are not enough sitting judges to handle the case load, causing serious delays and jeopardizing justice for plaintiffs and defendants. Many of those states have Republican Senators.
  • Of the 23 nominees who have been blocked from receiving final floor votes after being approved by the Judiciary Committee, 11 would fill seats considered to be “judicial emergencies.” Overall, there are 54 nominees pending, 31 of whom would fill seats considered judicial emergencies. (2)
  • Senate Republicans have placed secret holds on each of President Obama’s judicial nominees currently on the Senate floor, even on those that are uncontroversial and have the support of Republican home-state senators. Secret holds have been repeatedly placed on all of President Obama’s nominees to obstruct the confirmation process. (3)
  • President Obama’s nominees are the most diverse in American history. In fact, 44% of his nominees are female, doubling the rate of women appointed in the Bush Administration, and 42% are African-American, Hispanic, or Asian-American, including Goodwin Liu and Ed Chen, both of whom were rated unanimously well-qualified by the American Bar Association and who would serve on courts where Asian Americans have been historically underrepresented.. Only 18% of George Bush’s appointees were non-white.
  • At the end of the Bush Administration, 59.5% of all active federal judges had been appointed by Republicans, but even after almost two years of a Democratic administration, Republican appointees still accounted for ­58.7% of judgeships, reflecting the glacially slow pace of confirmations in President Obama’s first term and exposing the goal of Republican tactics.

(1) Carl Hulse, No Reveling for Democrats, Despite Achievements, N.Y. Times, Aug. 14, 2010, available at

(2) The Senate Judiciary Committee has scheduled an Executive Business Meeting for December 1, 2010, at which the Committee could report an additional 12 nominees to the floor.

(3) For example, on February 5, 2010 Senator Sessions placed a secret hold on all of Obama’s judicial nominees, http://thehill.com/blogs/blog-briefing-room/news/79923-reports-shelby-places-blanket-hold-on-obama-nominees. In June, 2010, NPR learned that secret holds again blocked all Obama nominees, http://www.npr.org/templates/story/story.php?storyId=126528338.

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This information, and more, can be found in the following Alliance for Justice reports, all but the last of which have been updated through today’s date, and which are available online:

A quick thought on pop up stores

Pop up stores by national chains is supposedly the latest "phenomenon" in retail.  Of course, this has been going on in a smaller scale by small tenants and even national retailers such as Hickory Farms for many years.  The leases, being short term, are figured out and conformed and done.  But what about the long term?

Some say this trend will continue over the long term.  I tend to agree.  Unfortunately I think it will depress prices unless lenders and buyers figure out a way to quantify and underwriter the pop ups, or pops enter into long term seasonal leases as a compromise, if landlords are willing to do so (and I would do so if the landlord had a cancellation right if it leases up the rest of the space in the mall -- there are all kinds of legal things we can do!)  In a way, it makes a lot of sense.  Cut down labor costs and dirt costs, concentrating on the couple of months that matter most.

What do I think might also happen?  It will hurt the have nots.  Let's face it: everyone wants to be in the major, in demand malls in major markets where your per sf sales are high enough to justify the year round store.  But in the have not malls with 20%+ vacanies?  You get the picture.  And that triggers co-tenancy clauses, and that triggers -- dead malls.  So, if you like to go to Water Tower Place or another mall that is basically 100% full, no change.  If you go to my local mall (which I don't, by the way)...thjings could be a-changing.

Want to make money? Get out of New York and DC!

This Globest.com piece might be the best I have read in a while.  Why?  Because it makes sense:

“Everybody got so burned by the downturn that they want safety and liquidity,” said Jonathan Gray of Blackstone Real Estate Advisors, during New York University Schack Institute’s 43rd Annual Conference on Capital Markets in Real Estate. Partly because everybody is chasing those same few deals in New York City, Washington, DC and a few other key markets, that means more opportunities in properties that are high-quality yet impaired....
Bingo.  If you want to make good money, get out into the rest of the country where the rest of us are not seeing a recovery as much as others.  And the story is also telling as to the amount lenders are putting out there.  Even though everyone says lenders are lending, transaction volume is still down 50%, 60% and more from a few years ago (not that we should be at those volumes again anyway). And even if you get that deal, the LTVs and rates are not exactly often going to knock you out.  So the deals better be good.

That said, the fire sale of the 90s is not a reality right now, or so says someone who ought to know more than most anyone:
For one thing, while the next few years will see hundreds of billions of dollars in annual commercial mortgage maturities, it’s not at all clear that this will lead to a flood of distressed assets, said panelist Neil Bluhm. “The product is coming out much more slowly and in a rational way” compared to the ‘90s, said Bluhm, managing principal of Walton Street Capital.
For another thing, Bluhm said later in the discussion, it’s not certain whether the capital flow will continue. “Most of the money we were talking about earlier, we raised a few years ago,” he pointed out.
(So yes, money is out there and just sitting on the sideline, just as everyone has said for almost as long as we can remember now.)

A borrower hit from both sides

This was published in Crain's a week ago, but it bears writing about, however briefly:

The long and short?  Mega Chicago restaurateur Phil Stefani guaranteed a $7 million construction loan used to renovate the building where his office is located, and which is owned in part by Stefani and others, including the well-known local developer Keith Lord..  The loan is past-due and the lender, Harris Bank, is pushing what he described as tough new terms for an extension, including new equity and prepaid interest.

Why is the project under water? In large part, because its anchor tenant, Amcore Bank, went under.  But here is the real kicker.  Amcore was also the lender for the project!  When it was shut down by the FDIC, the feds rejected the lease at Stefani's building and handed over the loan and Amcore's operations to Harris. So...now Harris is putting on the squeeze because the lease of its predecessor in interest tanked the value of the property.

You can read about the rest of the case going on in the Crain's article, but that story sort of left me out of sorts.  It seems like the banks get to have their cake and eat it, too.  Call it an application of the Golden Rule, I suppose.  And I have seen other similar situations where banks or government entities really play hardball for one overarching reason: because they can.  But Stefani has some very smart lawyers here, and I'll be interested in seeing how this plays out.

AFJ signs letter with over 50 groups calling for immediate votes on judicial nominees

AFJ today joined with over 50 other organizations in sending a letter to Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell calling for immediate action on President Obama’s stalled judicial nominations. With the clock running out on the 111th Congress, the groups demanded an end to the Republican tactic of blocking all nominees, even those with bipartisan support, and that votes are called on all of the two dozen pending nominees.

The letter reminded the leadership that, “The obstruction of many of President Obama’s nominees through filibuster threats and anonymous ‘holds’ is hindering the important work of our judicial branch, particularly in the many areas of our nation that now face judicial emergencies due to unfilled vacancies on the bench.”

As AFJ has pointed out before, the unprecedented tactics of delay and obstruction used by Republicans have wreaked havoc in the court system by preventing judges from taking their seats. The letter makes that case that “Due to arcane floor procedures that allow a single member to impede the important business of the Senate, our judicial branch has reached a state of crisis. Out of 872 federal judgeships, 106 are currently vacant, with 50 of those vacancies now characterized as “judicial emergencies” in which courts are being overwhelmed by filings that cannot be considered. As a result, a growing number of Americans, from all walks of life and across all economic strata, are finding it increasingly more difficult to assert their legal rights and to have their fair day in court.”

AFJ’s position is clear: Enough is enough. It’s time to vote.
To view the letter, go here: http://www.judgingtheenvironment.org/library/letters/End-backlog-groups-11-17-10-JUDICIAL-NOMINATIONS-letter.pdf.

Judicial Council of the Ninth Circuit calls on Senate to "Act on Judicial Nominees Without Delay"

The Judicial Council of the Ninth Circuit has drafted a powerful letter calling on the Senate to "act on judicial nominees without delay." The signatories include the Chief Judge of the Ninth Circuit, five other prominent circuit judges, and the Chief Judges of the district courts in Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. These leading jurists, appointed by both Republican and Democratic presidents, wrote "to emphasize [their] desperate need for judges," stating that courts "cannot do their work if authorized judicial positions remain vacant."

Two nominees to the Ninth Circuit Court of Appeals--Goodwin Liu and Mary Murguia--and three district court nominees--including Ed Chen, nominee to the Northern District of California--are awaiting final confirmation votes in the Senate. Liu, Murguia, and Chen would fill seats considered to be "judicial emergencies" by the Administrative Office of the U.S. Courts.

The full letter is available at: http://legaltimes.typepad.com/files/111510-letter-from-9th-circuit.pdf

Dramatic Disparity in Record of Senate Action on Judicial Nominees for Clinton, Bush, and Obama in First Two Years

As we reach the two-year mark of his presidency, President Barack Obama has faced unprecedented obstruction of his judicial nominees in the U.S. Senate and has fared far worse than his immediate predecessors both in having nominees approved and in relieving the federal courts of the burden of “judicial emergencies.”

With the clock ticking in the current lame-duck session of Congress, AFJ has released a report entitled, Judicial Nominations in the Clinton, Bush, and Obama Administrations: Which One of These is Not Like the Others? The conclusions are stark:
  • The number of vacancies in the federal judiciary has nearly doubled, from 55 to 107, since President Obama took office.

  • Officially designated “judicial emergencies” have risen from 20 to 50, affecting courts in 30 states.

  • Both Presidents George W. Bush and Bill Clinton had large numbers of vacancies and emergencies in their administrations, but were able to significantly reduce them by the end of their second year in office. In contrast, due to Republican tactics of obstruction during the first two years of the Obama Administration, both vacancies and emergencies have dramatically increased since January 2009. The federal courts are in worse shape than when the Obama term started. The opposite was true for Clinton and Bush.

  • Precedent exists to use the lame duck session to approve large numbers of judicial nominees. In the 2002 lame-duck Congress, a closely divided Senate confirmed 20 of President Bush’s judges, all but one on a voice vote.

AFJ believes there is no excuse for not using the remainder of this congressional term to vote on President Obama’s nominees to the federal bench. The Senate’s constitutional obligation to fully staff the courts does not stop just because the calendar is crowded and time is short. The final votes on all the nominees currently being held hostage by Republican obstruction could be dealt with expeditiously, exactly as they were in 2002 for President Bush’s nominees in similar circumstances. The ability of our courts to deliver justice to the American people is at stake, and there is no more time to waste.

A copy of the report can be found here: http://www.afj.org/judicial-selection/obama-judicial-nominations-obstruction-vs-recent-presidents.pdf.

Alliance for Justice presents “Forced Arbitration and the Roberts Court: How Hidden Clauses in Everyday Contracts Can Take Away Your Rights”

On November 10, 2010, Alliance for Justice hosted a panel in San Francisco to discuss the importance and potential ramifications of the U.S. Supreme Court case, AT&T Mobility v. Concepcion.

The panel comprised three distinguished attorneys who practice in the fields of consumer and employee rights: Arthur Bryant of Public Justice, Cliff Palefsky of McGuinn, Hillsman & Palefsky, and James Sturdevant, AFJ board member and Principal of The Sturdevant Law Firm.

This event was held just one day after the Supreme Court heard oral arguments in AT&T v. Concepcion, which may have the effect of severely restricting individuals’ ability to seek justice in the courts by use of class action law suits.

All three panel members emphasized the immensity of what is at stake in this case – the ability of large corporations to effectively shield themselves from liability for their wrongdoings and prevent everyday citizens from grouping together to address these wrongdoings in a class action lawsuit.

The panelists agreed that Tuesday’s oral arguments went better than they had anticipated, but that it is still quite unclear exactly how the Court will decide. Although the panelists expressed a reserved optimism that the Court would decide this case favorably, they maintained that regardless of the Court’s decision in this case, there are a number of other cases the Court will be decide on similarly pivotal issues concerning access to justice. Forced arbitration clauses and restrictions on class action suits are but two examples of ways in which large corporations are skewing justice in their favor.

The event was held in collaboration with National Employment Lawyers Association, The Employee Rights Advocacy Institute for Law & Policy, Public Justice, and the Bay Area Lawyers Chapter of the American Constitution Society.

For more information on the details of this case, AFJ has released this report, and AFJ President Nan Aron has written this article for Change.org.

Nan Aron on Huffington Post: Rule of Law Takes a Holiday While Bush Admits Torture and CIA Gets Off the Hook

This week, along with the spectacle of former President George W. Bush bragging on national television about authorizing torture, federal prosecutor John H. Durham allowed the statute of limitations to expire without pressing charges against C.I.A. agents and attorneys who participated in the destruction of videotapes chronicling the interrogations and mistreatment of Abu Zubaydah and Abd a-Rahim al-Nashiri.

Alliance for Justice is extremely disappointed that once again no one in the United States government is being held accountable for criminal acts undertaken as part of the Bush Administration's policy of abusing and torturing prisoners. The decision by Mr. Durham not to prosecute C.I.A. officials who destroyed evidence of detainee mistreatment is yet another example of the government officials involved in torture and other illegal conduct being given a free pass for their actions. We believe that Mr. Durham owes the country an explanation and should release a report of his findings and publicly explain the reasoning for his decision to allow C.I.A. officials off the hook.

Mr. Durham's decision is particularly disturbing in light of the admission this week by George W. Bush that he willingly authorized torture and that his actions were acceptable because a lawyer told him he could do it. Since Nuremburg, the world has understood that lawyers cannot provide immunity for crimes against humanity. We have also come to understand that the lawyers who enable such crimes themselves violate the law and can be prosecuted, whether they work for the Department of Justice or the C.I.A. Each time our government fails to face up to the crimes of its leaders, the United States slips further toward lawlessness and diminishes its hard-won ability to lead the world toward respect for the rule of law and human rights.

In light of President Bush's admissions and with abundant evidence available of egregious and criminal behavior, John Durham and the Justice Department must accelerate and intensify the investigation into the Bush Administration's illegal torture practices. It is long past time for the Obama Administration to take seriously its commitment to uphold the law of the land and bring to justice both the senior leaders who authorized torture and the lawyers who served as their enablers. To do otherwise makes a mockery of the men and women of the military, who, since George Washington, have treated prisoners humanely and of our long-professed belief that the rule of law should guide the world.

Read Nan Aron on Huffington Post

Holiday Inn -- a great F&B idea or another darn upgrade?

According to this WSJ article Holiday Inn has just completed " a sweeping, global overhaul that upgraded their hotels' bedding, signs, lobbies and showers, among other things, at an average cost to [franchisees] of $300,000 a property."

In the industry this is called a PIP.  So now what? On to the next one?  The next idea is to incorporate breakfast buffets (a la Embassy Suites?), socialize the meal process and streamline food and beverage service to cut back on labor costs.  This will, however, be implemented gradually, starting with some test markets to see if the idea works.  Although I am not a frequent HI, I actually like this idea.  That said, while the whole social networking thing is an interesting concept, most lobbies I see aren't usually big hubs of activity unless there is free food.  Also, just because you finish one program does not mean you should not be on to the next idea to maintain relevance.  It is almost like the people who redesign the menus at casual restaurant chains -- finish one and start the next!  I also wonder if some franchisees will try to incorporate the cheaper portions of this idea faster to cut labor cost.  I'll be interested to see whether and how this is implemented and whether this and the other HI upgrades pay off.

Completely OT: an immigration and tourist visa proposal

Okay, I'm taking a risk here, especially after the whole "I think Sarah Palin is a lousy speaker" debacle at ICSC.  And I know this has almost nothing to do with commercial real estate. But what the heck.

I am a firm believer in common sense when it comes to immigration.  As the husband of a legal immigrant, I believe in open borders -- to an extent.  If someone, for instance, is most likely going to make a significant contribution to our country, why not let that person in? Take my wife, for instance.  She jumped through years and years of hoops to obtain a green card and her "blue passport" (meaning US citizenship).  Her marrying me had nothing to do with it.  And she is a most productive member of society, treating our children and paying oodles and gobs of taxes to boot.  I want the best and brightest of the world -- doctors, engineers, software pros, etc. -- to come here to the maximum extent possible.  We have some programs available to encourage this, and I want more.

What has stuck in my mind for the last decade or so is our visa policy in some cases.  I am seeing my family driven crazy by i.  Take my highly-educated niece, for example.  When her father was dying, our government refused her a visa on the grounds that she was a "flight risk" and not likely to return home because her application to join her family in the US was still pending. Because we did not to do anything illegal or risk her application, she never got to see her father again.  She subsequently obtained her green card (after an eleven year wait) and promptly found a high-paying job as a software consultant.

My nephew's wife is going through a similar problem: her sister and father cannot visit her here because of "insufficient ties to the home country."  She is literally in years because she'd like them to see the wonderful life she is building here with my family. 

Let me say it isn't all bad.  My mother-in-law, brother and law and his family have been back and forth several times now, with of course absolutely no flight risk.  Many thanks to the consular officials who saw the honesty in them.  My mother-in-law's tourist visa is up for renewal next year. I cannot imagine her being denied given her record of traveling back and forth, although if it is we will immediately file a petition for permanent residency.

Don't get me wrong.  I absolutely see the other side of the coin.  We don't want people overstaying their welcome as tourists and potentially becoming liabilities on our government.  I totally get that and support it.  But isn't there a solution? 

My middle of the night idea, which for all I know exists or has been proposed already, is to have some method of sponsorship for someone who wants to be a tourist but is perceived in the government's opinion to be less likely to go home.  In other words, if I want relative X to visit, I will personally guarantee his return to the home country, and put up a significant deposit or bond (be it a lump sum of x% of net worth) and be required to pay for all enforcement and deportation costs if that return does not happen.  It should be a draconian amount, in my opinion -- one that no one will want to pay, and perhaps on a sliding scale based on income.  That way no one will sponsor someone that isn't really, really, going back.  Perhaps the privilege should only be available to citizens, or to green card holders with the possible penalty of losing your permanent residency.  I don't know.

All this may be impractical or pie-in-the-sky.  But darn it, I have family members who want to visit this country and go home again, and I'm willing to put my money where my mouth is to guarantee it.  There is nothing legal we would not have done to let our niece see her father before he died (and no, we did not have sufficient time or clout to push a Private Member's Bill through Congress, which a friend of mine actually did receive some years ago).  Is there another way?