Confirm Paul Watford to the Ninth Circuit!

UPDATE: This alert is no longer active. Paul Watford was confirmed by a vote of 61-34. All Senate Democrats voted for confirmation, as did Republican Senators Lamar Alexander, Scott Brown, Susan Collins, Lindsay Graham, Dick Lugar, John McCain, Lisa Murkowski, and Olympia Snowe.

Paul Watford was nominated last fall to an "emergency" vacancy on the Ninth Circuit Court of Appeals. An uncontroversial, mainstream candidate, he has attracted support from across the political spectrum and been given the highest possible qualification rating by the nonpartisan American Bar Association.

Some Republicans have spoken out strongly against Watford. For example, Chuck Grassley of Iowa says he opposes Watford because he served as co-counsel on a case and on an amicus brief challenging Arizona's controversial immigration law. Grassley and others had even gone so far as to begin a filibuster.

Of course, it's not the first time Republicans have seized upon flimsy excuses to mount last-ditch opposition against well-qualified nominees.

The opposition to those was almost certainly designed merely to drag out the process and make the president look bad. And now the same thing is happening to Paul Watford.

And while that partisan game plays out on the Senate floor, our federal courts remain critically understaffed.

On issues ranging from employment discrimination to health care, federal courts play an increasingly important role in the lives of hardworking Americans. But with caseloads soaring and the nominations process bogged down in partisan bickering, too many Americans are being forced to wait too long for their day in court.

Tell your senators to confirm Paul Watford to the Ninth Circuit, where new judges are badly needed.

Click here to take action!

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Three Judges Confirmed by the Senate

The Senate has confirmed three new judges to the federal bench: Jacqueline Nguyen to the Ninth Circuit Court of Appeals, Kristine Baker to the Eastern District of Arkansas, and John Lee to the Northern District of Illinois. Nguyen received an overwhelmingly bipartisan vote of 91-3. Baker and Lee were confirmed on voice votes. 

All three judges are filling seats that have been designated as emergency vacancies, meaning there are not enough judges in the courts to hear the cases coming before them in a timely manner. Republican intransigence at every step of the nominations process has caused these nominees to be held up in the Senate for far too long.

Nguyen was stalled in the Senate for 159 days awaiting her final vote; 225 days have passed since she was first nominated. Baker, nominated 188 days ago, has been waiting 82 days for her Senate vote. Lee has also been waiting 82 days for his confirmation vote; 180 days have passed since he was nominated.

With the confirmation of these three judges, 93 current and future federal judicial vacancies remain; a third of them (34) are judicial emergencies.

The votes on Nguyen, Baker, and Lee bring to a close the deal on confirmation votes struck between Senate leadership—a deal struck after Majority Leader Harry Reid (D-NV) was forced to file cloture on 17 judges in order to make action happen on confirmations. With the deal at an end, the focus on nominating and confirming people to the bench must increase even further. Republicans could start by allowing action today on the 19 nominees still awaiting their confirmation votes. With 1 in 10 seats on the federal bench vacant, the movement to keep filling judicial seats so that ordinary people can access justice in our courts cannot be allowed to slow or halt.

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Supreme Court Issues Decision in Important Access to Justice Case

Yesterday, the Supreme Court issued its opinion in Douglas v. Independent Living Center of Southern California, deciding 5-4 to vacate the Ninth Circuit’s decision and remand the case for further consideration “in light of the changed circumstances.”

The Court did not resolve the central issue of whether individuals may use the Supremacy Clause of the U.S. Constitution to sue the state of California for adopting Medicaid laws that allegedly deny care to certain individuals in violation of the federal Medicaid statute.

The consolidated Douglas cases arose from California’s decision to issue cuts of up to ten percent in Medicaid benefits. A group of medical providers and low-income elderly and disabled individuals challenged the cuts under the Supremacy Clause, saying that they violated federal law by causing a reduction in the number of providers willing to participate in the program. The district court found that the reduction has forced or will force non-emergency medical transportation services and home health services providers to reduce the geographic area they are able to serve, to decline to take new Medicaid patients, and to end services to some existing patients or close their businesses.

The Ninth Circuit held that the claims could proceed and that a preliminary injunction preventing the cuts from going into effect should be granted. The Supreme Court was asked to decide the preliminary issue of whether the Supremacy Clause granted the plaintiffs a right to sue.

In an opinion penned by Justice Breyer, the Court held that the cases, although not moot, are now “in a different posture.” Between the Court’s grant of certiorari and the rendering of its decision, the federal agency charged with administering Medicaid determined that the rate reductions complied with federal law. As a result, the Supreme Court decided that the parties should reargue the Supremacy Clause claim in the Ninth Circuit. 

In dissent, Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, would have held that there is no cause of action under the Supremacy Clause, regardless of the position taken by the federal agency.

According to California and the dissenters at the Supreme Court, no private individual should have the right to sue a state for noncompliance with federal Medicaid laws. However, as Alliance for Justice has shown in its report on the Douglas cases (.pdf download), former Housing and Human Services officials have said that private enforcement “has been the cornerstone of HHS policy throughout the history of the Medicaid act, and remains the prevailing view of those charged with administering the program.”

If Americans were left unable to use the Supremacy Clause to challenge illegal state laws, states would feel free to gut a range of other important federal programs and policies. Although the Supreme Court did not conclusively close the courthouse door to these plaintiffs, it did send the case back to the Ninth Circuit with the central issue unresolved. We also now know that the Supreme Court has at least four votes against allowing Americans to stand up for their rights under the Supremacy Clause.

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The Corporate Court: Making New Laws from Thin Air

The Roberts Court's troubling pro-business bias has long been evident in the cases it chooses to hear and in the decisions it renders. But one aspect of the Court's tendency to overreach in favor of corporate interests is its penchant for crafting new laws out of thin air, without the apparent need to do so.

For example, the dispute in AT&T Mobility v. Concepcion arose after AT&T offered customers a "free" phone but charged a sales tax of up to $30. When customers discovered the scheme and asserted their rights in court, AT&T sought to enforce a contract provision banning class actions and requiring all disputes to be settled in arbitration.

Applying California contract law, the Ninth Circuit Court of Appeals invalidated the provision as unconscionable because it allowed AT&T to defraud many consumers out of an amount of money so small that victims were unlikely to arbitrate individually. California law applied the same unconscionability principles to class arbitration prohibitions as it did to class litigation prohibitions.

Nonetheless, the 5-4 majority held that California law conflicted with the Federal Arbitration Act because California “disfavored arbitration.”

In his dissent, Justice Breyer stated that the Court should, “think more than twice before invalidating a state law that does just what §2 [of the FAA] requires, namely, puts agreements to arbitrate and agreements to litigate upon the same footing.”

The conservative majority in AT&T v. Concepcion rewrote the FAA to favor business-friendly arbitration over litigation, and prevent states from protecting consumers.

For more on the Roberts Court's history of overreaching, download AFJ's special report: How the Corporate Court Bends the Law to Favor the 1%.

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Mind your own business, Senator Lee

Two judicial nominees in West Virginia have fallen victim to the knee-jerk obstruction of a senator from thousands of miles away.

In an op-ed for the Charleston Gazette, AFJ President Nan Aron takes a look at the nominees and the senator standing in their way:

I'm willing to bet that people in West Virginia, like most Americans, have never heard of Mike Lee. He's the junior U.S. Senator from Utah, and has been in office for all of two years. Yet, he has decided all by himself that West Virginia can't have new federal judges.

He's mad at President Obama, so he's throwing a legislative fit and has vowed to block all of the president's appointments to the federal courts, including two from West Virginia...

President Obama, working closely with Senators Jay Rockefeller and Joe Manchin, has appointed Gina Groh from Charles Town to fill a seat on the U.S. District Court, and Stephanie Dawn Thacker from Charleston to the U.S. Court of Appeals for the Fourth Circuit. These are highly qualified individuals with impeccable records and are fully representative of West Virginia values. They have bipartisan support and were unanimously approved by the Senate Judiciary Committee.

Click here to read the rest of Nan's column.

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Senate Judiciary Committee Reports Four Nominees to the Floor, Holds Hearing on Four Nominees

This morning the Senate Judiciary Committee reported four United States District Court nominees to the Senate floor, where they now await their final confirmation votes.

The nominations of John Lee to the Northern District of Illinois, John Tharp, Jr. to the Northern District of Illinois, George Russell III to the District of Maryland, and Kristine Baker to the Eastern District of Arkansas were reported out on a voice vote with overwhelming bipartisan support from the committee members. Only Senator Mike Lee (R-UT) -- who has pledged knee-jerk opposition to every single nominee -- opposed the nominations. Ranking Member Charles Grassley (R-IA), the only Republican in attendance, announced that Senator Lee opposed the nominees “for reasons unrelated to the qualifications of the candidates,” voting no as a means of expressing an opinion on an unrelated matter.

Three of the four vacancies these nominees will fill vacancies that the Administrative Office of the U. S. Courts has declared to be “judicial emergencies.”

As has become usual practice for Republicans during the Obama presidency, Senator Grassley invoked a committee rule to delay consideration of Andrew Hurwitz for the Ninth Circuit Court of Appeals until the next committee meeting. Since the Senate will be in recess next week, it will be at least two weeks before action can be taken to move his nomination forward to the full Senate. The vacancy Hurwitz has been nominated to fill is also a judicial emergency.

Earlier this week, the Judiciary Committee held hearings on four nominees: Patty Shwartz to a seat on the Third Circuit Court of Appeals; Mary Lewis to a seat in the District of South Carolina; Jeffrey Helmick to a seat in the Northern District of Ohio, and Timothy Hillman to a seat in the District of Massachusetts.

For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Project webpage.

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The three judges of Perry v. Brown

Last week's landmark decision on marriage equality in California was made by a three-judge panel of the Ninth Circuit Court of Appeals. Much has been written about the legal positions and implications, but less has been said about the judges whose deliberations and opinions grabbed the headlines.

Here is some background information on the three-judge panel.

Judge Stephen R. Reinhardt, who authored the decision, was appointed to the Ninth Circuit in 1979 by President Jimmy Carter.  He was confirmed to the seat on September 11, 1980.  Judge Reinhardt is a graduate of Pomona College (1951) and Yale Law School (1954).  Following law school, he served in the U.S. Air Force from 1954-1956, clerked for Judge Youngdahl of the U.S. District Court for the District of Columbia from 1956-1957, and then entered private practice in Los Angeles from 1957-1980.

Judge Michael D. Hawkins, currently holding senior status on the Ninth Circuit, joined Judge Reinhardt’s decision.  He was appointed to the bench by President Bill Clinton in 1994 and was confirmed by the Senate that same year.  On February 12, 2010, Judge Hawkins assumed senior status.  He received his B.A. from Arizona State University and his J.D. from Arizona State University College of Law.  Upon graduation from law school, he served for three years as a U.S. Marine Corps Special Courts Martial Military Judge.  He then worked in private practice in Phoenix, Arizona from 1973-1976; served as a U.S. Attorney for the District of Arizona from 1977-1980; was back in private practice from 1980-1994; and, from 1985-1989, served as a special prosecutor for the Navajo Nation.

Judge N. Randy Smith, who dissented in the case, was nominated on January 16, 2007 to fill a seat on the Ninth Circuit; he was confirmed to the seat on February 15, 2007 and began service the next month.  Judge Smith is a graduate of Brigham Young University and of the J. Reuben Clark School of Law at Brigham Young University.  After law school, he worked as Associate/Assistant General Counsel for J.R. Simplot Company from 1977-1981; was an adjunct professor at Boise State University from 1979-1981; worked in private practice in Pocatello, Idaho from 1982-1995; and became a district judge for the Sixth Judicial District of the State of Idaho in 1995, serving until his appointment to the Ninth Circuit.  Judge Smith began work as an adjunct professor at Idaho State University in 1984, a position he continues to hold.

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The Proposition 8 ruling: How did we get here?

Advocates working to restore the rights of same-sex couples to marry in California won an important victory this week when a three-judge panel of the Ninth Circuit found that Proposition 8, an amendment to California's constitution that banned gay marriages, violates the U.S. Constitution.

Like many civil rights battles, the path to this victory has been a long one, and we thought it might be helpful to share this brief timeline of the legal battle over Proposition 8:


March 7, 2000 – California voters approved Proposition 22, which amended state law to bar the recognition of same-sex marriages.

February 12, 2004 – San Francisco authorizes the issuance of marriage licenses to same-sex couples, issuing 3,955 marriage licenses.

August 12, 2004 – The California Supreme Court rules that San Francisco exceeded its authority by issuing marriage licenses to same-sex couples and declares the 3,955 marriage licenses null and void. San Francisco responds to this ruling by challenging the constitutionality of Proposition 22 in the California state court system.

May 15, 2008 – The California Supreme Court found that Proposition 22 violated the California constitution. Opponents of marriage equality had already begun working on a proposed amendment to the California constitution, carving out an explicit constitutional exception for these laws.

June 2, 2008 – Proposition 8 qualified for the ballot.

June 17, 2008 – The State of California begins issuing marriage licenses to gay and lesbian couples.

November 4, 2008 – Prop 8 passed by popular vote, with 52% of Californians voting to amend the state constitution, and therefore invalidated the California Supreme Court’s finding that laws banning same-sex marriage were unconstitutional.

November 5, 2008 - Advocates challenged Proposition 8 in state court, claiming that the ballot initiative process violated the state constitutional procedures for enacting amendments to the state constitution.  This legal challenge was not successful.

March 5, 2009 – Arguments were made in the California Supreme Court challenging the validity of Proposition 8.

May 23, 2009 – Same-sex couples in California challenged Proposition 8 in federal district court as violating the 14th Amendment of the United States Constitution.

May 26, 2009 – After hearing arguments in March, the California Supreme Court ruled that Proposition 8 validly amended the state's constitution, and was therefore a lawful and valid action.

January 11, 2010 – Challenge to Proposition 8 heard in federal court in the Northern District of California.

August 4, 2010 – Judge Vaughn Walker of the Northern District of California ruled that Proposition 8 violated provisions of the 14th Amendment of the U.S. Constitution. Proponents of Proposition 8 swiftly appealed the decision to the Ninth Circuit Court of Appeals.

November 17, 2011 – The California Supreme Court responded to the Ninth Circuit's request for advice on whether the Proposition 8’s backers should be allowed to appeal the case to the Ninth Circuit (even though state officials would not challenge Walker’s ruling), concluding the state should not bar the case from being appealed.

February 7, 2012 – The Ninth Circuit upheld the district court ruling, declaring Prop 8 unconstitutional because it violated the Equal Protection clause of the 14th Amendment by stripping away a right once granted to all people in California—the right to marry—from a particular group.

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Judiciary Committee Reports Paul Watford to Senate Floor

This morning the Senate Judiciary Committee reported 9th Circuit Court of Appeals nominee Paul Watford to the Senate floor in a vote of 10-6 along party lines, with two Republican senators (Jon Kyl and Lindsey Graham) voting “Present.” 

California Democratic Senator Dianne Feinstein gave a statement in support of Mr. Watford, praising his legal record and highlighting his bipartisan support. Watford’s nomination is supported by Jeremy Rosen, head of the California Branch of the Federalist Society, conservative Chief Justice of the 9th Circuit Alex Kozinksi, and the CEOs of Verizon, Mattel, and Google. Although several Republican senators voted against Watford, none of them spoke against his nomination at the meeting. 

The 9th Circuit Court of Appeals is currently faced with four judicial vacancies and a caseload of 557 cases per judge (.pdf download), more cases than any other circuit. Each vacancy in the 9th Circuit has been declared a judicial emergency.

For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Project webpage.

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Senate Judiciary Committee Hearing for Five Nominees

The Senate Judiciary Committee held a confirmation hearing last Thursday for Andrew Hurwitz to the United States Circuit Court for the Ninth Circuit and for Kristine Baker, John Lee, John Tharp, Jr., and George Russell III to United States District Court seats in the Eastern District of Arkansas, the Northern District of Illinois, the Northern District of Illinois, and the District of Maryland, respectively.

Senator Durbin (D-IL) chaired the hearing and Senator Kyl (R-AZ) attended as well. The hearing was uneventful, with Senators Durbin and Kyl both congratulating the nominees on their nominations and wishing them well.

Four of the five seats which the nominees will fill if confirmed have been deemed judicial emergencies by the Administrative Office of the U.S. Courts.

For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s Judicial Selection page.

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Senate Returns Next Week - Nominees on the Agenda

When the Senate returns from its recess next week, the Judiciary Committee will hold an Executive Business Meeting and a Nominations Hearing.

On Thursday morning, the committee will hold an Executive Business Meeting at which Republicans will most likely delay a vote on Paul Watford, who has been nominated to fill a judicial emergency vacancy on the Ninth Circuit Court of Appeals.

On Thursday afternoon, the committee will hold hearing on the nominations of Andrew David Hurwitz, also nominated to fill a seat on the Ninth Circuit, and of four district court nominees: Kristine Gerhard Baker, nominated to the Eastern District of Arkansas; John Z. Lee and John J. Tharp, both nominated to the Northern District of Illinois; and George Levi Russell III, nominated to the District of Maryland.

The seats Hurwitz, Lee, Tharp, and Russell would be filling have all been deemed emergency vacancies by the Administrative Office of the U.S. Courts.

With 103 current and future vacancies on the federal bench, the Senate needs to act quickly confirm all 37 pending nominees.

For the most accurate, up-to-date information on the judicial selection process, visit AFJ's Judicial Selection page.

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Senate Confirms Christen to the Ninth Circuit

Yesterday afternoon the Senate confirmed Morgan Christen to the United States Ninth Circuit Court of Appeals by a bipartisan vote of 95-3, with only Senators Jim DeMint, Rand Paul, and David Vitter voting no. Once sworn in, Christen will be the first Alaksan woman to serve on the Ninth Circuit.

President Obama nominated Christen to the seat on May 18, 2011; on September 8 she was reported out of the Senate Judiciary Committee by a unanimous voice vote. From the date of her nomination, Christen waited 212 days to be confirmed to the seat, which has been labeled a judicial emergency by the Administrative Office of the U.S. Courts.

The Senate’s action leaves 21 other judicial nominees waiting on the floor for their confirmation votes, 19 of whom were reported out of committee either unanimously or with strong bipartisan support.

For the most accurate, up-to-date information on the judicial selection process, visit AFJ's Judicial Selection page.

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Senate Judiciary Committee Hearing for Ninth Circuit Nominee

The Senate Judiciary Committee held a confirmation hearing for Paul Watford to the United States Circuit Court for the Ninth Circuit.  Senator Whitehouse (D-RI) chaired the hearing, opening the proceedings by noting the numerous judicial vacancies in the Ninth Circuit and quoting a recent letter from the circuit’s Chief Judge Alex Kozinski who said, “[W]e fear that the public will suffer unless our vacancies are filled very promptly.”  Also attending the hearing were Senator Feinstein (D-CA), who introduced the nominee, and Senator Grassley (R-IA), the ranking Republican member.  Senator Whitehouse remarked at its conclusion that the hearing was notably uneventful.

Watford was nominated to the seat on October 17, 2011.  If confirmed, he will be the fourth African American to serve on the Ninth Circuit, and just one of two active African American judges on the 29-member court.  There are five vacancies on the Court of Appeals for the Ninth Circuit—four current vacancies, all of them deemed judicial emergencies by the Administrative Office of the U.S. Courts—and one future vacancy.  For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s Judicial Selection page.

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Hearing for Three Nominees

The Senate Judiciary Committee today held a hearing on the nomination of Judge Jacqueline Nguyen to the United States Ninth Circuit Court of Appeals. Nguyen was nominated to the Ninth Circuit by President Obama on September 22, 2011; she was appointed to her current seat on the U.S. District Court for the Central District of California by President Obama in July 2009, taking her place on the bench in December of that year when the Senate confirmed her with a unanimous vote of 97-0. Judge Nguyen, who was born in Dalat, Vietnam in 1965 and fled that country at the age of nine during the fall of Saigon, is the first Vietnamese American to serve on the federal bench. If confirmed to the Ninth Circuit, she will be the United States’ first Asian Pacific American woman to serve as a federal appellate court judge and one of only two Asian Pacific Americans actively serving in the nation’s federal Courts of Appeals.

Hearings were also held for Gregg Jeffrey Costa and David Campos Guaderrama, to be United States District Judges for the Southern District and the Western District of Texas, respectively.

All three seats are open due to vacancies that have been designated judicial emergencies by the Administrative Office of the U.S. Courts. The seat to which Nguyen is nominated has been vacant for 1,016 days since its creation on January 21, 2009. Costa and Guaderrama are being considered for seats vacant for hundreds of days--Costa’s for 510 days, Guaderrama’s for 980—since the prior occupants took senior status.

For the most up-to-date and comprehensive information on judicial nominations see our Judicial Selection Project page.

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Tell Your Senators: Goodwin Liu Deserves a Vote!

** UPDATE: THIS ALERT IS NO LONGER ACTIVE ** 

An acclaimed scholar, teacher, and lawyer, Goodwin Liu is widely considered one of the brightest legal minds of his generation. Yet his nomination to the Ninth Circuit Court of Appeals has been stalled for over a year by obstruction in the U.S. Senate.

Act now to support Goodwin Liu's nomination to the Ninth Circuit. Tell your senators to confirm Goodwin Liu TODAY!

Supported by leaders from across the political spectrum, Goodwin Liu possesses the intellect, integrity, experience, and temperament to serve as an excellent circuit court judge. Not even his harshest critics can claim that Liu isn't superbly qualified, but some Republicans may still try to prevent him from even receiving a vote in the Senate.

Goodwin Liu has waited too long for a vote. We need you to join us in a national effort to support Liu's confirmation TODAY.

Liu's nomination also has historic significance: if confirmed, he would become only the second active Asian American appellate judge in the country, and the only active Asian American judge on the West Coast's Ninth Circuit. The Senate will decide Thursday if Liu will even receive a yes-or-no vote; the time to act is now!
    
Tell your senators to move forward with Goodwin Liu's nomination, and to vote to confirm him to the Ninth Circuit.

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