Slow-Walking the Nominations Process in Committee

The Judiciary Committee reported three nominees to the Senate floor at its Executive Meeting Thursday morning.  Committee votes on Richard Taranto to fill an appellate seat on the Federal Circuit and Robin Rosenbaum to fill a seat in the Southern District of Florida were supposed to be taken on March 15.  However, due to the failure of sufficient committee members to appear on that day (seven of the Democratic committee members were present, but Ranking Member Senator Chuck Grassley (R-IA) was the only Republican to appear), the Committee was two members short of the quorum required to do business. 

While they were still waiting to see if more members would show up, Senator Grassley noted that if a quorum was established he would be requesting that consideration of Taranto and Rosenbaum be delayed for a week.  Chairman Patrick Leahy (D-VT) noted that he and Senator Grassley had discussed establishing a process whereby business meetings held for the sole purpose of invoking the extension of consideration of nominees could take place without a quorum, but that other Republican members of the Committee had objected.  

Before recessing the meeting where no business had been able to take place, Senator Leahy stated, “The Republicans requested this meeting, even though it would be a pro forma type of thing.  They seem to be boycotting the meeting.” 

The same thing happened at the regularly scheduled business meeting of the Judiciary Committee the following week, March 22, when Taranto, Rosenbaum, and Gershwin Drain, nominee to the District Court of the Eastern District of Michigan, were scheduled to be considered.  Eight of the Democratic Committee members sat and waited; they were two members short of a quorum.  Twenty-six minutes after the meeting was scheduled to begin, Senator Grassley arrived, but no other Republican members came.  

When Senator Leahy again noted that it appeared that the Republican members were boycotting the committee, Senator Grassley responded that he was not aware of a boycott attempt, but acknowledged that it would be unlikely that any other member of his caucus would appear and allow the committee to conduct its business.  Senator Leahy recessed the committee after stating that he would convene it later that afternoon off of the Senate floor when a series of votes were scheduled to take place.  That meeting did occur, and the Republican committee members invoked the automatic week’s extension, with the result that no action to move the nominations process forward occurred.

A quorum did appear on March 29.  Taranto and Rosenbaum were reported out of Committee on voice votes with only Senator Lee opposing them.  A roll call vote was held on Drain, resulting in a party-line vote of 10-8.  Five other listed nominees – one to a Circuit Court seat and four to District Court seats – were held over.  Since the Senate is leaving on recess after this week, these five judges – William Kayatta, Jr. to the First Circuit, John Fowlkes, Jr. to the Western District of Tennessee, and Kevin McNulty and Michael Shipp to the District of New Jersey – will not receive consideration by the Committee to be advanced to the Senate floor for confirmation until April 19 at the earliest.

In addition to many other tactics to delay, slow-walk, and obstruct the nominations process – tactics that range from refusing to review background materials in a timely manner, to failing to return blue slips, and to filibustering consensus nominees – Republicans in the Senate are also shirking their Constitutional duty to advise and consent by refusing to show up and let the Committee conduct its business.  While they are playing the politics of obstruction, justice for millions of ordinary people is being delayed and denied due to a judicial vacancy crisis that has 1 in 10 seats on the federal bench empty.  For each day that the nominations process is stalled in the Senate, Americans across the country are prevented from having their day in court.

For the most comprehensive, up-to-date information on judicial nominations, visit the Judicial Selection Project website.

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4 Nominees Scheduled for Consideration Today

The Senate Judiciary Committee is scheduled to consider 4 District Court nominees today:

• Kristine Baker (Eastern District of Arkansas)
• John Lee (Northern District of Illinois)
• John Tharp, Jr. (Northern District of Illinois)
• George Russell (District of Maryland)

During the Obama presidency, it has been the habit of Republican senators on the judiciary committee to automatically delay every first-time consideration of nominees by one week, so it is likely that the committee will not be permitted to hold votes on these four nominees today.

Lee, Tharp, and Russell have all been nominated to seats that are considered to be judicial emergencies.

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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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Judiciary Committee Reports Five Judicial Nominees to the Floor

This morning the Senate Judiciary Committee reported five judicial nominees to the Senate floor. Four nominees were reported on a unanimous voice vote: Stephanie Dawn Thacker, Michael Walker Fitzgerald, Ronnie Abrams, and Rudolph Contreras, nominees to the Fourth Circuit, the Central District of California, the Southern District of New York, and the District of Columbia, respectively.

Miranda Du, nominee to the District of Nevada, was reported out on a 10-8 party-line vote.

Fitzgerald and Du have been appointed to vacant seats that have been designated as judicial emergencies by the Administrative Office of the U.S. Courts.

The committee also held over until its next meeting a vote on Susie Morgan, nominee to the Eastern District of Louisiana.

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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Hearings on Five Nominees, Two to Fill Judicial Emergencies

The Senate Judiciary Committee today held hearings on the nominations of Stephanie Dawn Thacker to the United States Court of Appeals for the Fourth Circuit and of Michael Walter Fitzgerald, Ronnie Abrams, Rudolph Contreras, and Miranda Du to serve as United States District Judges in the Central District of California, the Southern District of New York, the District of Columbia, and the District of Nevada, respectively.

If confirmed, Fitzgerald and Du will both be filling vacancies that have been deemed “judicial emergencies” by the Administrative Office of the U.S. Courts. Senator Dick Durbin (D-IL) presided over the hearings; also in attendance were committee members Senator Mike Lee (R-UT) and Senator Chris Coons (D-MD).

With 108 vacancies in our federal courts, 32 of them judicial emergencies, the Senate should move swiftly to put these well-qualified nominees on the federal bench.

For the most up-to-date and comprehensive information on judicial nominations, download the Alliance for Justice’s Judicial Selection Snapshot and The State of the Judiciary May–August 2011: Judicial Nominations in the 112th Congress.

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A Bill To Create New Federal Judgeships

On October 6, the Senate Judiciary Committee will consider S.1014, The Emergency Judicial Relief Act of 2011.

The bill, introduced by Senator Dianne Feinstein (D-CA) in May, would create 10 new district court judgeships:

• 2 for the District of Arizona
• 4 for the Eastern District of California
• 1 for the District of Minnesota
• 1 for the Southern District of Texas
• 2 for the Western District of Texas

The bill would also convert existing temporary judgeships in the District of Arizona and the Central District of California into permanent judgeships. The incumbents in the current temporary judgeships would remain in the converted seats, and the president would name nominees to fill the new positions.

The bill has bipartisan support from co-sponsors Senator Barbra Boxer (D-CA); Senator John Cornyn (R-TX); Senator Al Franken (D-MN); Senator Kay Bailey Hutchison (R-TX); Senator Amy Klobuchar (D-MN); Senator John Kyl (R-AZ); and Senator John McCain (R-AZ).

Also on October 6, the committee will vote on five judicial nominees: Evan Wallach to the United States Circuit Court for the Federal Circuit, and four United States District Court nominees (Dana Christensen, District of Montana; Cathy Bencivengo, Southern District of California; Gina Marie Groh, Northern District of West Virginia; Margo Brodie, Eastern District of New York). 

All five were automatically held over by the Republican members of the Judiciary Committee at its last Executive Business meeting, rather than being considered on the day their nominations were first brought to the committee.

The creation of new federal judicial seats and the confirmation of nominees to fill them will help to ease the crushing case-loads that are currently overwhelming inadequately staffed federal courts and preventing people from gaining access to justice.

For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

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Senate Judiciary Committee Hears Testimony on Supreme Court’s Corporate Slant

Today, the Senate Judiciary Committee held a hearing on the Supreme Court’s ongoing pattern of putting the financial interests of corporate litigants above the rights of everyday Americans.

Chairman Leahy called the hearing to focus on three decisions from the recently-completed Court term: Wal-Mart v. Dukes, AT&T Mobility v. Concepción, and Janus Capital Group v. First Derivative Traders. These cases are representative of how, as Chairman Leahy described it, “the most business-friendly Supreme Court in the last 75 years” is eroding the legal protections American consumers and employees rely on, particularly in tough economic times.

Among the witnesses was Betty Dukes of Pittsburg, CA, a seventeen year veteran employee of Wal-Mart and lead plaintiff in the gender discrimination case broken up by the Court last week. Dukes remains upbeat in her hope that, even without the ability to fight Wal-Mart as a unified class, women subjected to the retail giant’s discriminatory culture and practices will one day obtain justice. However, she testified that many women will give up because it’s too hard to fight the company alone, and especially difficult to fight one’s own employer.

Professor Melissa Hart of the University of Colorado Law School testified to the common threads between the Wal-Mart and AT&T decisions. In both cases, the same five-vote majority of the Supreme Court interpreted procedural rules in ways completely different from their original meaning and with hostility to the class action device. As a result, no court has reached or will be likely to reach the substance of the claims made in those cases. Questioned by Senator Franken, Professor Hart stated that the Court’s interpretation of the Federal Arbitration Act of 1925 was inconsistent with its legislative history and purpose, and that allowing corporations to write class action bans into fine print contracts incentivizes small-dollar rip-offs of hundreds of thousands of hard working people. Franken has introduced the Arbitration Fairness Act in response to AT&T, which would amend the FAA and limit binding mandatory arbitration.

Senator Franken also took to task witness Andrew Pincus, the attorney who represented AT&T before the Supreme Court. Pincus, a partner at corporate defense giant Mayer Brown LLP, wrote in the New York Times and suggested in his opening statement that only plaintiffs’ attorneys looking to rack up huge fees would be hurt by the Court’s ruling. Franken noted that the average partner at Mayer Brown is paid over $1 million per year; Pincus, he said, is in no position to criticize others for a possible financial interest in the workings of the legal system.

Professor James Cox of Duke University School of Law testified on the likely fallout in the financial industry from the Court’s decision in Janus. The narrow and inapt definition adopted by the Court of who can “make” a false or misleading statement will greatly restrict the power of investors to recover damages and enforce anti-fraud laws. Only the Securities Exchange Commission will be able to go after many offenders, and even then there may now be loopholes. But the SEC, Cox explained, has only investigated, much less taken enforcement action, in 17% of resolved securities fraud cases, and it has been hesitant to take action against the biggest Wall Street firms. Connecting back to Wal-Mart, Senator Franken observed that the Equal Employment Opportunity Commission, the government body charged with pursuing workplace discrimination claims and to which many of Dukes’s colleagues may now have to turn, has a backlog of 80,000 claims to hear.

Senator Whitehouse observed that the procedural hurdles, arcane rules, and cramped statutory interpretations that characterize recent Supreme Court decisions might be summed up in two words: “corporation wins.” In closing, he extolled the role of jury in our constitutional design, and lamented the Court’s “steady addition of trouble, toils, and snares” between everyday Americans and their right to have their cases heard by their peers.

For complete analysis of how big business has fared before the Supreme Court, see AFJ's Corporate Court webpage.

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Five Nominees Reported From Senate Judiciary Committee, Hearing on Four More Next Week

On Thursday, the Senate Judiciary Committee reported out five nominees: Goodwin Liu, nominee to the United States Court of Appeals for the Ninth Circuit on a party-line vote; Esther Salas, nominee to the United States District Court for the District of New Jersey on a unanimous voice vote; J. Paul Oetken and Paul A. Engelmayer, nominees to the United States District Court for the Southern District of New York on unanimous voice votes; and Ramona V. Manglona, nominee to the United States District Court for Northern Mariana Islands on a unanimous voice vote.

The Senate Judiciary Committee has scheduled a hearing for next Wednesday on four judicial nominees: Henry Floyd to the United States Court of Appeals for the Fourth Circuit; Nelva G. Ramos to the United States District Court for the Southern District of Texas; Richard B. Jackson to the United States District Court for the District of Colorado; and Sara L. Darrow to the United States District Court for the Central District of Illinois.

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Senate Schedules Vote on Circuit Court Nominee Jimmie Reyna

Last night the Senate agreed to vote on Monday at 5:30p.m. on the nomination of Jimmie Reyna to the United States Court of Appeals for the Federal Circuit. Mr. Reyna currently serves as a partner and director at Williams, Mullin P.C., in Washington, D.C. He is a leading international trade attorney with significant experience in trade policy, business regulation, and compliance law. Reyna was nominated on September 29, 2010, and he was reported out of the Senate Judiciary Committee unanimously on March 10, 2010. If confirmed, Mr. Reyna would become the first Hispanic American ever to serve on the Federal Circuit.

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Senate Judiciary Committee Action on Judges

Yesterday the Senate Judiciary Committee held an executive business meeting at which it reported out four nominees and held over five nominees until its next meeting on April 7th.

John J. McConnell, nominee to the United States District Court for the District of Rhode Island was reported out on a vote of 11-7, with Senator Graham (R-SC) voting with the Democratic committee members. Three other nominees, Kevin Sharp, nominee to the United States District Court for the Middle District of Tennessee, Roy Bale Dalton, Jr., nominee to the United States District Court for the Middle District of Florida, and Claire C. Cecchi, nominee to the United States District Court for the District of New Jersey were all reported out en banc.

Goodwin Liu, nominee to the United States Circuit Court for the Ninth Circuit was held over for the second time, at the request of Senator Grassley (R-IA). Esther Salas, nominee to the United States District Court for the District of New Jersey, J. Paul Oetken, nominee to the United States District Court for the Southern District of New York, Paul A. Engelmayer, nominee to the United States District Court for the Southern District of New York, and Ramona V. Manglona, nominee to the United States District Court for the Northern Mariana Islands were all held over for the first time.

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Alliance for Justice Submits Testimony on Muslim Civil Rights

The following testimony was submitted to the United States Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights:

Alliance for Justice is a national association of over 100 organizations dedicated to advancing justice and democracy. We have an unshakable belief in the right of all Americans to practice their religion without interference and that no citizen should ever be afraid to worship, establish religious communities, or speak openly about their religious precepts. Efforts to broadly demonize the Muslim religion or its adherents are contrary to the most fundamental principles that undergird our nation’s values and our Constitution, which guarantees to all Americans an inalienable right to freedom of religion, speech, and peaceable assembly.

It is deeply disturbing to see individuals, organizations, and members of the media intentionally advance bigotry and promote intolerant acts against Muslims, but it is unconscionable for those holding public office to participate in such efforts. Recent efforts by members of Congress to denigrate an entire group of citizens by tarring them as radicals, extremists, or terrorist sympathizers, should not go unanswered and today’s hearings are a welcome and hopeful sign that our nation has not forgotten its foundational principles.

When any group is singled out for persecution or investigation, based on nothing more than its religious affiliation, we all lose a measure of our own liberty. The fabric of our free society is eroded when all Muslims are painted as terrorists or potential criminals, despite clear evidence to the contrary, and in spite of the unambiguous message from law enforcement agencies that American Muslims have been active and willing partners in the effort to protect the nation from terrorist attacks. The notion of collective guilt is utterly anathema to American principles and must be rejected without equivocation.

Nothing could do more damage to our ability to protect ourselves from violence than to cut off from American life the very people whose cooperation is desired to help identify those who mean us harm. Our strength as a nation comes from our diversity and from a belief in a common destiny. Scapegoating the entire Muslim community for the acts of a few and directing unremitting hate speech at Muslim beliefs and institutions only serves to create a gulf that divides neighbor from neighbor and weakens the fabric of our society at a time when unity is essential.

The subcommittee and Chairman Durbin are to be commended for standing forthrightly for religious freedom, and reminding us that we are one people untied by a shared belief in tolerance, diversity, and liberty.

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One Nominee Confirmed, Six Reported Out of Committee

Yesterday the Senate confirmed Max Cogburn, Jr. to a seat on the United States District Court for the Western District of North Carolina on a vote of 96-0. The confirmation vote was significant in two ways. First, the Senate has up until this point only confirmed nominees on Mondays, so having two votes in one week is a good sign. Second, Cogburn was the fourth nominee confirmed this week, the most out of any week this Congress. With 117 remaining vacancies on the federal bench the Senate needs to keep confirming at least that many nominees a week to cut into the huge backlog of vacancies.

The Senate Judiciary Committee also reported six nominees to the floor. Caitlin Halligan, nominee to the United States Court of Appeal for the District of Columbia, was reported out on a 10-8, party-line vote. The other five nominees—Jimmie Reyna, nominee to the United States Court of Appeal for the Federal Circuit, John A. Kronstadt, nominee to the United States District Court for the Central District of California, Vincent L. Briccetti nominee to the United States District Court for the Southern District of New York, Arenda L. Wright Allen, nominee to the United States District Court for the Eastern District of Virginia, and Michael Francis Urbanski, nominee to the United States District Court for the Western District of Virginia—were reported out on voice votes. There are now three circuit court and eight district court nominees awaiting confirmation votes on the Senate floor.

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

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