Judicial Confirmation Crisis
The D.C. Circuit now has four vacancies out of eleven seats.
Jeffrey Toobin brings us up to date on a problem that’s been festering for more than a decade: the inability to get qualified judges through the Senate.
Without sixty votes, it’s now virtually impossible to accomplish anything in the contemporary United States Senate.
This senatorial entropy has taken an enormous toll on President Obama’s judicial appointments. This was the second time that Halligan received majority support, but, because she never passed the threshold of sixty, her nomination now appears doomed. And so, in the fifth year of his Presidency, Obama has failed to place even a single judge on the D.C. Circuit, considered the second most important court in the nation, as it deals with cases of national importance. (Its judges—like John Roberts, Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg—also often wind up on the Supreme Court.) The D.C. Circuit now has four vacancies out of eleven seats.
During the last Bush Administration, Republican Senators grew so frustrated with what they called Democratic obstruction of judicial nominees that they threatened to change Senate rules to limit filibusters on judges. In 2005, the bipartisan “Gang of Fourteen” Senators announced a truce. Democrats agreed to allow votes on Bush’s nominees in “all but extraordinary circumstances,” and they kept to the deal. Bush’s second-term appointees (including two to the Supreme Court) proceeded without obstruction. At least technically, the Gang of Fourteen compromise is still in effect. But Republicans have essentially ignored it—as the Halligan filibuster demonstrated.
The specific case is question is DC Circuit nominee Caitlin Halligan. Her offense?
Halligan is impeccably qualified to be a judge—she’s a career government lawyer from New York—and she enjoyed broad support among members of both parties in the legal community. Opposition to her focused almost completely on a single brief she wrote for her boss, then-New York Attorney General Andrew Cuomo. Cuomo had sought to make gun manufacturers legally responsible for some of the violence in New York, a position that the National Rifle Association opposed. The N.R.A. punished Halligan for doing her job for New York, and the Senate Republicans followed.
Without delving into the brief itself, I’m inclined to disagree with the notion that gun manufacturers should be held responsible for the criminal use of a legal product, particularly in light of the 2nd Amendment. But it’s not an extremist position. And, certainly, writing a legal brief for one’s boss isn’t an indicator one way or the other of agreement with the position argued.
Further, while this is indeed a case of “both sides do it”—as Toobin already noted, frustration during the Bush administration over this issue brought up the “nuclear option” debate—it’s gotten much worse with Republicans in opposition.
In his first term, especially in the first two years, Obama himself bore much of the blame for this. When Democrats controlled sixty Senate seats, Obama was slow to nominate lower-court judges, and his moment of greatest leverage passed. But, since the 2010 midterm elections, Republicans have been at fault, almost entirely. Most nominees are not formally stopped, as Halligan was, but rather are delayed and delayed. Bush’s nominees got votes within weeks; Obama’s take months, even for uncontroversial selections. William Kayatta, Jr., nominated to the First Circuit, waited three hundred days for a vote and then received eighty-eight votes for confirmation. Republicans delay because they can. “The Republican Senators are not punished for it, and they are rewarded by their base,” a senior administration official said.
There’s an argument to be made for high level scrutiny being applied to federal judges generally—it’s a lifetime appointment, after all—and for appellate judges in particular—they set precedent that guides thousands of cases. While my longstanding view is that a 60 vote requirement for confirmation is extraconstitutional, if not unconstitutional, I’m amenable to the argument that judicial nominees ought to be well within the mainstream; presidents shouldn’t be able to radicalize the legal system for decades to come by virtue of a slim Senate majority.
But we’re well past that. Senate Republicans aren’t standing firm against radical judges but against Democratic judges. And, no, the two aren’t synonymous; the American people have, after all, elected a Democratic president two cycles in a row and Democrats got more votes for both the House and Senate as well.
As Toobin notes, there doesn’t appear to be a solution in sight. Both parties have come close to invoking the so-called “nuclear-” or “Constitutional option,” which would require a straight, up-or-down, vote for judicial nominees, and balked. Not unreasonably, they figured that they would one day be back in the minority and might want the ability to block truly objectionable nominees. And, sadly, relying on the integrity and collegial good will of the minority party to use their extraordinary power only in extraordinary cases isn’t working.
There may be a middle ground option, whereby judicial nominees would be required to obtain, say, 55 votes for confirmation in exchange for the inability to filibuster or otherwise block a vote. In most cases, that would mean at least a couple of votes from the opposition party. In all cases, it would seem enough of an indicator that the nominee isn’t an extremist. But even that sort of compromise is unlikely to be achievable in the current climate.
I think the logical solution would be to decide that if the Senate is unable to hold a vote within 180 days of a nomination, it has chosen to abdicate its “advise and consent” role for that nominee. It seem unreasonable that the judicial and executive branches should have their ability to perform their roles with efficiency and efficacy undermined by pure Senatorial spite.
I would love to know how many of the Senators howling “up or down vote!” a decade ago are placing holds and grinding committee votes to a halt now.
I would guess this will spread to the Supreme court as well and I would guess that when Obama leaves office it will be down to 7 members or even less.
The ideological make up of the current DC court favors the GOP. They have no reason to want to approve any appointees. I fail to see how adequate leverage can be brought to change this. The US Senate remains one of our largest obstacles in trying to govern.
Steve
Ah, yes, the D.C. Circuit. Sadly Miguel Estrada was unavailable to comment on this story. Of course his crime was being a young conservative Hispanic. Janice Rogers Brown’s crime was being a conservative black female. But at least after four-plus years she ultimately did get confirmed to that court. No such luck for Estrada. The irony would be lost on liberal airheads in the chattering classes.
In any case, the filibuster should be outlawed in connection with federal judges and justices. Every one of them should get an up or down vote. Democrat. Republican. Liberal. Conservative. If the minority party in the Senate is all verklempt about a particular judicial nominee then they should go ahead and win some more elections next time around.
Seems to me a compromise and deal was made and Republicans broke that deal. So why should anyone trust any deals now. Fundamental dishonesty on one side dooms our system of government.
Alas, this does appear to be the case.
It is no way to govern.
I think this story is being exaggerated a bit. Nowhere, for example, is the White House’s tardiness in making appointments mentioned. IIRC there have been nominations for only two of the four vacant seats.
Additionally, the rate and number of the confirmation of President Obama’s appointments, is roughly the same as the rate and number of confirmations of President George W. Bush’s and President Bill Clinton’s.
All things considered I don’t see this story so much as “those mean Republicans” as that the entire process is probably more leisurely than it should be on all sides.
@Dave Schuler: But, the example given (and others I have seen) are of nominees who are a) qualified, and b) able to get majority (just not super-majority) support, all of which in the context of a growing number of such cases. This is being driven by the minority party. I am not sue that they are mean, but they are exercising, as James notes, extraordinary power for cases that are not extraordinary.
Faster nominations, which ought to be coming, would not increase the speed of confirmations.
When were the nominations made? When were the hearings held? Hearings are the purview of the chairman of the Senate judiciary committee. How much time has elapsed since the end of Senate hearings and the present and how does that compare with previous administrations?
If only one nominee to the DC Circuit who’s had a hearing hasn’t been confirmed yet and the length of time since the hearings is within past norms, we may be making a mountain out of a molehill.
Remember, the Senate is the saucer in which hot legislation and, apparently, appointments are left to cool.
@Dave Schuler:
Also, my understanding is that the Obama administration went out of their way to get prior concurrence with senators on nominations affecting their states (which goes along with the early days of trying to reach out and cooperate) only to have the hand slapped away.
I think the evidence shows obstructionism on an unprecedented scale.
Republicans are not interested in, nor capable of, governing.
Todays Republican Party exists solely to control the reproductive systems of women and protect the income of the most wealthy.
This is not hyperbole.
This is borne out by their actions.
Shorter Dave Schuler – both sides do it, because shut up, that’s why.
@Dave Schuler:
This is more than “cooling.” And yes: the Obama administration should have taken advantage of its brief supermajority in the Senate. However, he fact that to make his process work would have required a rapid exploitation of a historical oddity underscores the problem.
Source: Rethinking Consent: Proposals for Reforming the Judicial Confirmation Process
Michael Teter
University of Utah S.J. Quinney College of Law
May 17, 2012
Ohio State Law Journal, Vol. 73, No. 2, 2012
And yes: it is part of a longer trend (one that increasingly sees the empowerment of the minority party in the Senate on all matters, including legislation. It has accelerated in recent years.
I would also recommend Gregory Koger’s book, Filibustering.
We have a real problem with the e Senate.
Toobin misses the point when he merely states that the D.C. Circuit is of national importance and suggests that’s because its a “farm league” for the SCOTUS.
The D.C. Circuit is important because Congress delegates to it special powers to review executive action under laws it passes. Its an important part of Congressional oversight of the executive, and it is a court which Congress has every reason to be skeptical of the executive’s judicial appointments, regardless of party affiliation. In turn, justices serving on the D.C. Circuit can create a record of a type of executive deference that will appeal to a POTUS looking for Supreme Court replacements. Its not that they are necessarily better justices or its a better court, its work is more predictive.
I blame Obama.
At this point, we simply need to do away with the filibuster altogether. Its clear to me that the filibuster is no longer just an option for the rare, important case: its simply become an all purpose wrecking ball which the minority party uses to foil every attempt at governance by the majority party.
I have no patience for old time pundits who hem and haw and reminisce about the old days when gentlemen understood that certain things were just not done and how things were in the days of Dirksen and Russell, or maybe Clay and Calhoun. Those days ain’t coming back.
Here in 2013, the filibuster just means obstructionism for its own sake, and should go the way of the all male Senate. That was traditional too.
If we want to make sure that the Senate does a good job of advising and consenting on Presidential nominations, then let’s choose good Senators.
And by voting for Republicans, you reward this behavior, Mr. Joyner. You –yes, you!– are the cause of this problem.
I think it was an extreme position. She was advocating manufacturer’s being liable for the misconduct of the people who purchase their guns. If I were to wrongfully shoot someone, either on accident or on purpose, she wanted the manufacturer to be civilly liable to the victim for the resulting damages under common law theories known as “public nuisance.”
This was extreme in two senses: First, she would make manufacturers liable for the independent misconduct of the consumer. Second, she would have the courts craft this remedy without legislative support.
@Scott:
This. Anyone who makes a deal with Republicans, or even believes what they say for a cold second, is a rube. They need to be steamrolled – put them on the defensive, and watch them destroy each other in the blame game. They are not negotiating in good faith, they are not fulfilling any sort of oath to govern, they are not interested in the welfare of the US. F*ck ’em all.
@PD Shaw: You would visit the sins of the client on the attorney, and that IMO goes too far.
The woman was doing her job. Dangerous instrumentality theories in strict liability are not all that unusual or outrageous, and public policy arguments made in good faith in opposition to established law are an ordinary feature of argument in the system.
For her advocacy she’s branded with this indelible scarlet letter. It’s one thing to look for clues of judicial temperment from her written opinions, had she been a jurist, but that’s not what’s happening here. For shame.
I can’t buy the idea that if only Obama had nominated a larger number of liberal judges then the GOP would have decided to confirm them, but because he nominated too few liberal judges, they decided not to confirm them.
@PD Shaw: It’s a simple extrapolation of strict liability negligence theory (in a direction that doesn’t quite work, IMHO) and an attempt to place the damages caused by firearms on to the manufacturers in hopes that they would be more cautious about whose hands their products got into.
Doug, OT, but are you going to post anything about Gilberto Valle? To me it’s the equivalent of a first-year law student’s exam question on conspiracy law, but the commentary from the defense has been so over-the-top I can’t tell if there’s anything else involved that I’m missing. There do seem to be a LOT of internet commentators who obviously know nothing about the elements for conspiracy, methinks.
(It’s really annoying to listen to the internet throng go all nutzoid about something that is extremely well-settled common law.)
@PD Shaw:
I recall a lawsuit by a couple of guys who lost all their fingers against the manufacturer of a lawn mower. What did the manufacturer do that was so negligent? They didn’t tell people to not use a push mower as a hedge trimmer. I do not recall if they won their case or not (I hope not).
I honestly don’t understand Senate Dem strategy on judicial filibusters.
First, the federal judiciary is currently dominated by republican appointees, many who happily revisit and overturn precedent, and who are all-to-eager to “legislate from the bench” through decisions that alter the nature of our democracy. This should make filling judicial vacancies of paramount importance for a partisan interested in effecting long-term change, or even just arresting the Court’s rapid tilt to the Right.
Second, if a political party, when they take their turn in power, fails to get their judicial nominees appointed, when they’re next out of power their are just that many more vacancies for the opposition party to fill. This allows their opponents to much more rapidly shift the judiciary in their direction & enact their partisan agenda on the country.
Lastly, the “nuclear option” fight of the Bush years should tell them that the “preserving the power” argument makes no sense since if you attempt to exercise the power the Senate Republicans are plenty willing to remove it. Can you imagine how much more eager they’ll be to remove judicial filibusters if they come into power with unprecedented levels of judicial vacancies offering the tempting opportunity to pack the courts?
So the Dems really should just cite the “Gang of Fourteen” deal, spell out how the GOP has repeatedly violated the deal, remind the public of the GOP’s nuclear option which was their alternative to the truce, and enact it.
@C. Clavin: off the meds today clavin? there’s little if any abortion legislation going on anywhere, and obama takes care of his wealthy posse too. with your “logic” white folks should like obama as he keeps blacks unemployed (2x the rate of whites) and aids in assuring they’ll always be a minority (via aborting black babies). what a guy!
@bill: Except of course for the 100 plus abortion restrictions passed by Rs in the states in the last two years. Somebody needs meds, and I don’t think it’s C. Clavin.
@OzarkHillbilly: I once worked as a file clerk at an insurance defense lawfirm and when I was filing something away came across this large rounded piece of plaster. I asked what it was. It was a plaster cast of the indention of a man’s head from when he got intoxicated and stoned on July 4th and dived into a six inch kiddie pool from the roof of his house. He broke his neck and became paraplegic and was suing the pool manufacturer for failure to warn.
@grumpy realist: Here, in Illinois, which is probably about as anti-gun as anyplace, this theory was rejected unanimously by a Democratic state supreme court. I wouldn’t claim that the argument is not within a recognized legal framework, but I think that framework has been rendered obsolete by the rise of the regulatory state.
@rudderpedals: Extending strict liability to a new subject matter by the judiciary is a policy matter that’s quite different from traditional legal practice. It would be entirely inappropriate to castigate her for defending a murderer. She also spoke out in public forums against the federal Protection of Lawful Commerce in Arms Act, which was passed with bi-partisan support to stop these types of lawsuits. I see her as occupying a role similar to John Yoo, she’s obviously a policy advocate, who is occupying the extreme fringe of an area of law, and it shouldn’t be any more surprising that she will face similar types of opposition that Yoo would face under similar circumstances.
@PD Shaw:
That sounds nice and all but she’s being opposed by
NAMBLAthe NRA. That organization should not be consulted about minor issues, let alone judicial appointments.@Dave Schuler:
I guess you missed this:
@Dave Schuler:
Then how do you explain the following:
Ms. Halligan is not President Obama’s only judicial nominee suffering endless delays for a vote. As the infographic below highlights:
• 78 percent of President Obama’s circuit court judges have waited more than 100 days for a vote, compared to 15 of President Bush’s nominees.
• This obstruction also applies to President Obama’s district court nominees. 42 percent of our district court judges have waited more than 100 days for a vote, compared to 8 % of President Bush’s nominees.
• Further, the average wait time for our judicial nominees to get a vote on the floor of the Senate – both for the circuit court and the district court – is 3-4 times as long as those of our predecessor.
http://www.whitehouse.gov/blog/2013/03/05/draft-president-obama-record-judicial-diversity-record-judicial-delays-impact
It’s hilarious that Joyner simply take Toobin’s word for things that are demonstrably false. For example, Toobin says that the Gang of Fourteen compromise is still in effect. ut the actual Gang of 14 document expressly says that it relates “to pending and future judicial nominations in the 109th Congress”. More generally, the idea that Obama’s nominees have taken an extraordinarily long time to get confirmed is simply wrong on the facts. His district court nimnees have taken longer, but his circuit court nominees have taken LESS time fto go from nomination to confirmation than under Bush. As of a few months ago, according to Brookings, the # of days from nomination to confirmation were as follows:
Circuit Court nominees:
Clinton: 127
Bush: 283
Obama: 240
District Court Nominees:
Clinton: 93
Bush: 155
Obama: 223
http://www.brookings.edu/~/media/research/files/papers/2012/12/13%20judicial%20nominations%20wheeler/13_obama_judicial_wheeler
So this post is simply based on an incorrect premise. But look, if you outsource your opinions to left-wing hacks like Toobin, that’s what you get.
@ bill
How is Obama “keeping blacks unemployed?” Be specific.
@Al S:
Ignoring the GOP’s 60 vote requirement for Democratic priorities doesn’t mean it doesn’t exist.
Well, Obama is weighing in with the Senate on this:
Guess the “reforms” enacted by Reid two months ago aren’t working out so well.
I’m sure that a “strongly worded public statement” by the President to Mitch McConnell is just what’s needed to get things rolling, right?
@Tsar Nicholas:
No, his crime was that he was a young conservative lawyer with no experience as a judge and no written record to weigh against his work with Ted Olsen on Bush V. Gore and his friendship with Ann Coulter. Given that he was nominated soon after Bush V Gore, it’s not surprising that there was resistance. It may have been a mistake but the Senators who blocked that vote had reason to believe it was an extraordinary case.
Well, did he win? Anybody can sue. Not everyone can win. It’s only actually outrageous if you tell us that he won the suit, it was upheld on appeal, and the pool manufacturer had to pay him damages. Otherwise all you’re doing is complaining that someone had access to the courts to file a complaint. Which, yeah, everyone does.
@DRE:
Which is true of many, many nominees, including Caitlin Halligan.
This is, of course, completely false. There were plenty of written records of his that the Judiciary Committee reviewed, such the public briefs in the cases he’s argued.
@Al S:
Per wiki: “Democratic Senators opposed the nomination, noting Estrada’s lack of any prior judicial experience at the local, state, or federal level. Additionally, though a member of The Federalist Society, Estrada had never been an academic, so there was no record of his writing by which the Senate could review his record.”
@Rafer Janders:
Actually, for many Republicans, that is a problem. Witness their love of “tort reform”- a euphemism for closing the doors of the courts to ordinary citizens. Can’t have the ” job creators” bothered by those pesky “takers” who had the misfortune to be injured by the products or actions of good bidnizmen.
Don’t ignore the impact of the Democratic refusal to join the GOP in gaming the blue slip process in the lack of progress on judges as well.
@David M:
Damn you, David M, and your FACTS! Al S was doing so well there for a moment.
Halligan’s pro career, per Wikipedia:
Seriously, can anyone defend why she wasn’t confirmed immediately when nominated back in 2011?
@Al S:
The issue here is pure partisan obstructionism. Bush nominees took longer to get through the Judiciary Committee for a variety of reasons as documented in that report, but that has always been part of the process. Obama nominees have taken an extraordinary amount of time to get a floor vote after being approved by Judiciary Committee. (139 vs 54 for district and 177 vs 63 for appeals according to the report)
@stonetools:
I see, the difference between Estrada and Halligan is that … Halligan has tought one class a year as an adjunct professor. So clearly she is more than qualified for a lifetime appointment as a judge on the second highest court in the land whereas Estrada is just a complete bum.
The Brookings paper Al S cites should be read. Bottom line is really on page 3. The GOP gets its vacancies filled. The Dems, not so much. A lot of that looks to be an effort to not fill slots in the first term of a presidency, hoping the re-election attempt will fail. Be careful with the time estimates as Obama’s term is not over yet.
Steve
@Al S:
Well, Estrada’s testimony before the Judicial Committee seems to have included some stretchers. He hadn’t thought about Roe vs. Wade? Seriously? I know all conservative nominees routinely lie about that, but that doesn’t make it true.
Doesn’t sound exactly like Mr. Above Suspicion to me.
In any case, I’m for no filibusters myself. Want better judicial nominees? Win elections and choose good presidential and senatorial candidates. I’m OK with BOTH Estrada and Halligan in the federal judiciary. If we are worried about their capacity to do a lifetime of mischief, then limit terms to 15 or 20 years , with an option to “re-up.”
@gVOR08: nipping funding isn’t all that “restrictive”…and showing women what they’re about to kill is hardly immoral. i could care less if they made a mistake and took care of it quickly, but the dreaded “late term” abortions are straight out killing a human being. so yes, killing actual babies should be “restricted” if not banned. spare me the ‘life of the mother/rape” bs- that stuff should be taken care of asap. i don’t even mind billing the “father” for half the bill!
@bill:
That doesn’t make a lot of sense given most abortions are performed early in pregnancy, and these restrictions were not only on later term abortions. Late term abortions after viability are very rare and usually not just on a whim as you seem to think.
@stonetools:
That’s not “the bottom line”. It is one of thirteen bottom lines. For me, the most important bottom line is the following:
Obama’s circuit confirmation rates were within the range of his immediate predecessors, and the confirmations came sooner than did Bush’s.
Actually, the REAL bottom line is that Joyner outsourced his opinion to a very dubious source in Toobin.
@Al S:
And why is your single stat more important than the other (negative ones) regarding confirmations?
@PD Shaw: The Protection of Lawful Commerce in Arms Act I’d not heard of before. Wow . For Shames^2 to the yea voters on that law.
I get the Yoo comparison but with all the filibustering and flipped control I see perhaps Priscilla Owen and Charles Pickering as better analogs.
“Obama’s circuit confirmation rates were within the range of his immediate predecessors,”
Noting one just one of the courts and ignoring the other, plus the use of bold, doesn’t quite make a case. The overall rate matters more.
Steve
A crisis? Oh come on. The DC Circuit Court has 6 senior judges available to pitch in, plus Districit Court judges sit on appellate panels when specially designated. DC District Court has but a single vacancy and another 5 senior judges. The entire premise of this post, like Obama’s histronics on the sequester, is erroneus.
@steve:
And yet compared to the House of Representatives the Senate is a model of near-perfect governance.
@anjin-san:
There is much evidence that Obama is keeping Blacks unemployed, here are the obvious ones:
(1) He continues to refuse to show them Clacks an authenticated long-form birth certificate.
(2) He refuses to support a reduction in marginal tax rates to the top 1%
(3) He refuses to support a reduction in Capital Gains and Inheritance tax rates
(4) He is covering up the Benghazi story
(5) He plays golf periodically
(6) He bailed out Detroit saving jobs, many which were held by Whites