An Entire Branch of Government is ‘Strangling,’ Senator Cautions


ON THE LATEST OBSTRUCTION OF JUDICIAL NOMINEES: “Mitch McConnell Just Tried Skipping Over Cory Booker’s Judicial Nominee Again/Instead of trying to compromise, the Majority Leader’s proposed votes are becoming more partisan” — That’s how the Leadership Conference on Civil Rights headlined, in an essay for Medium, its concerns about the latest Senate Republican obstruction of President Obama’s judicial nominees.

The unsuccessful efforts this week by Sen. Booker, D-N.J., to get confirmation votes on a judicial nominee from his state, who is African American, and several others who have been waiting the longest for action, were mentioned in Gavel Grab. The Leadership Conference highlighted Booker’s remarks on Tuesday to Sen. McConnell, R-Ky., about the damaging impact of Senate partisanship upon the federal courts:

“There is a branch of government that’s independent of ours that we are strangling right now through our inaction. Any objective understanding of the functioning of the American government should clearly state that one branch should not strangle the operations of another — undermining what is clearly in the best interest of the people.”

Booker pushed back against McConnell’s claim that numbers of nominees confirmed under Presidents Obama and Bush show no disadvantage for Obama. “This is not a partisan tit-for-tat — Bush has this much, Obama has this much — this is about the fact that we have a proliferation of judicial emergencies. That there are businesses — that our very economy, actually — is being undermined because businesses can’t get a fair hearing before the judicial branch.”

TRUMP TO ADD NINE MORE TO HIS ELEVEN: Donald Trump has pledged to expand from 11 to 20 his list of “outstanding people” whom he would consider, if elected president, for the Supreme Court, according to Politico. “We’re gonna have a total of 20 people and I will pick from that group of 20 people,” Trump said.

JUDGE GIVES WARNING TO TEXAS: “A federal judge on Tuesday ordered the state of Texas to take steps to make it perfectly clear to voters that they’re not required to possess a voter ID before they cast a ballot in the upcoming election,” Huffington Post reported. Its article was headlined, “Texas Got Caught Flouting A Court Order On Voter ID, And Now It’s Under Supervision/The state said it would ask the Supreme Court to review its voter ID law.”

Another Bid to Advance Judicial Nominees is Torpedoed

CapitolflagNO CONSENT FOR JUDICIAL NOMINEES VOTE: Sen. Cory Booker, D-N.J., urged the Senate on Tuesday to agree unanimously to vote on seven district court nominees who have been waiting the longest. But Republican Leader Mitch McConnell of Kentucky objected. He proposed a shorter list that included a long-standing African-American nominee from Tennessee and omitted a long-standing African-American nominee from New Jersey. Booker objected, proposed a vote on just those two nominees, who have been awaiting the votes the longest, and McConnell once again disagreed.

“There’s no credible reason why we’re not moving forward besides partisanship,” Booker told senators, according to It was the latest effort to break a partisan logjam and confirm judicial nominees in a region where judicial vacancies and backlogs have drawn a “judicial emergency” designation. President Obama announced one of the nominees pushed by Booker for a vote, attorney Julien Neals of New Jersey, nineteen months ago.

A DULLER DOCKET FOR THE SUPREME COURT? The eight-member Supreme Court, hobbled by Senate Republicans’ refusal to take up the nomination of Judge Merrick Garland for a vacant seat, currently doesn’t have major cases on abortion, immigration, or affirmative action on its docket.

“Shorthanded and ideologically divided, the U.S. Supreme Court has yet to take up any cases on politically sensitive social issues in its new term starting in October, instead showing a keen interest in more technical cases of importance to business such as disputes over intellectual property,” Reuters reported. Intellectual property cases often get one-sided votes, either unanimous or a clear majority, on the court.

FORCED ARBITRATION: Not only was Wells Fargo & Co. CEO John Stumpf grilled yesterday about the bank’s stance on forced arbitration (see Gavel Grab), but Senate Banking Committee members raised the issue with federal regulators.

“Do you think forced arbitration clauses make it easier for big banks to cover up patterns of abusive misconduct?” Sen. Elizabeth Warren, D-Ma., asked Richard Cordray, director of the Consumer Financial Protection Bureau, according to The Los Angeles Times. 

“I do think so,” Cordray replied. reported that Sen. Sherrod Brown, D-Ohio, warned at the hearing about the Wells Fargo fake account scandal, “Rather than letting fraud victims have their day in court, Wells Fargo forced customers to abide by the mandatory arbitration clauses in their real accounts.” He added,  “The bank invoked the fine print on a real account to block redress on a fake one which Wells Fargo had created.” To read about support by our sister organization, Alliance for Justice, for eliminating forced arbitration and broadening access to justice, click here. 

AFJ in the News: Congress Nears Milestone for Obstructing Judges

images1A MILESTONE IN OBSTRUCTION AHEAD? Senate Democrats are slamming Republicans for blocking not only a Supreme Court nomination but also those of 53 lower court nominees, according to The Hill. It cited our sister organization the Alliance for Justice saying that “Congress is on track to have the lowest number of confirmations since the session that ran from 1951 to 1952.”

A Democratic Senate majority confirmed 68 of Bush’s judicial nominees in his last two years in the White House compared to the Republican Senate majority’s confirming 22 of Obama’s judicial nominees in his last two years, noted Sen. Patrick Leahy, D-Vermont.

Although Republicans point to 327 of President Obama’s judges confirmed so far, compared to 325 for President George W. Bush, Nathaniel Gryll, AFJ’s legislative counsel, labeled that “meaningless.”  “Obama has had more judges confirmed because he’s had substantially more vacancies than Bush to fill,” Gryll explained. “At this point in their presidencies, Obama’s been tasked with filling approximately 60 more vacancies than Bush had faced.”

Two dispatches from Texas reflected the tensions mounting over judicial vacancies and political gamesmanship. “White House blasts Cruz, Cornyn for pushing Texas judges while blocking Supreme Court nominee,” The Dallas Morning News reported. A Houston Chronicle headline said, “Texas has a judge problem – not enough on the federal bench.”

THE ELECTION AND SUPREME COURT: Once again the Supreme Court has fallen by the wayside as an issue in the 2016 election, Chris Geidner wrote at BuzzFeed, as he published a timeline for upcoming dates when it might command public attention. He discussed the court’s commencing a new term on Oct. 3, the presidential debates, the possibility of a close Election Day vote for president, and what may unfold during the Senate’s lame-duck session.

Regarding the blockaded nomination of Judge Merrick Garland for the Supreme Court, The Hill reported, “Supreme Court fight colors battle for the Senate.” According to The Associated Press, “Justice Elena Kagan says the longer the Supreme Court is stuck with only eight members, the more it has to deal with the prospect of not being able to decide cases.” And The New York Times examined one appeal already on the docket for the Supreme Court this fall, “Supreme Court to Hear Case on Racial Bias Among Jurors.”

JUDICIAL DIVERSITY: The first Native American judge to serve on the Minnesota Supreme Court has taken her oath of office, The Associated Press said. Anne McKeig, formerly a Hennepin County district judge, was named to the high court by Gov. Mark Dayton.

AFJAC in USA Today; Clinton Might Not Choose Garland

voting-boothAFJAC IN THE NEWS: Although President Obama has not yet succeeded in getting Judge Merrick Garland confirmed for the Supreme Court, “his lower court appointments could help swing the presidential election to his chosen successor,” USA Today reported, while quoting Nan Aron about presidents and the judges they name.

USA Today said certain appeals and district court judges have recently voted to invalidate voting restrictions adopted by Republican legislatures. “These decisions certainly demonstrate the critical importance of having a Democrat in the White House,” said Aron, Alliance for Justice Action Campaign president. “These laws are transparent in intent, to harass and suppress the vote in states across the country.”

Meanwhile a New Jersey Law Journal article, “Five Ways [Donald] Trump Could Change the Federal Bench in New Jersey,” cited Aron in her role as president of our sister organization, Alliance for Justice. “The Senate’s hold-up on confirmation votes might not ease even if Trump is elected,” the Journal posited. Whether Republicans keep their current majority in the Senate is the key, Aron told the publication. The article is available by a Google search.

CLINTON ON COURT VACANCY: Democratic presidential candidate Hillary Clinton said she might not choose Garland for the high court, and hinted at the possibility of a bolder choice if she is elected, Bloomberg reported. “Clinton would ‘look broadly and widely for people who represent the diversity of our country’ if she has the opportunity to make ‘any’ Supreme Court nominations,” the news service said.

Democratic Sen. Tom Udall of New Mexico has a proposal for revised Senate rules on judicial nominations, according to The Hill. Glenn Harlan Reynolds, a University of Tennessee law professor, advocated in USA Today for the election of Supreme Court justices. On the other hand, a new analysis by the Brennan Center forJustice delivered plenty of grist for critics of judicial elections; focusing on state court races, it cautioned, “Politicized and High-Dollar Races Threaten Fair and Impartial Courts.”

JUDICIAL DIVERSITY: Obama nominated prosecutor Diane Gujarati for the U.S. District Court for the Eastern District of New York, according to The American Bazaar. If confirmed, she would be  the first Indian American to serve as an Article III federal judge in New York, the National Asian Pacific American Bar Association said.

High Stakes for Courts on Election Day; AFJ in the News

VOTERU.S. COURTS AND THE ELECTION: Just how central is the presidential election for the future of all U.S. courts? “Fate of federal courts rests with the next president,” declares the headline for an essay by John G. Malcolm and Tiffany H. Bates of the Heritage Foundation’s Center for Legal and Judicial Studies in The San Diego Union-Tribune.

Taking into consideration the current vacancy on the Supreme Court and more vacancies that are likely, as well as the hugely important role of the lower federal courts, the authors conclude, “The next president will have the opportunity to leave a massive imprint on the federal courts for a generation or more. The stakes are high indeed.”

With the presidential campaigns entering the home stretch,  Senate Republicans continued what Media Matters for America calls “Unprecedented Obstruction” on President Obama’s Supreme Court nomination of Judge Merrick Garland and numerous lower-court nominations; Media Matters cites Alliance for Justice data to drive home its point. Both Garland and Vice President Joe Biden visited Capitol Hill on Thursday as part of a new push for Garland’s confirmation “in the face of a united Republican blockade,” according to The Washington Post.

Meanwhile the Daily 202 blog of the Post asks, “Did Obama squander an opportunity by nominating Merrick Garland?” The blog reports, “Some Democrats privately fear that Obama blew an opportunity to help re-activate the coalition that elected him twice by not picking a more progressive nominee – especially a minority candidate – to replace the late Antonin Scalia. Had Obama nominated someone who really ginned up the Democratic base, perhaps [Hillary] Clinton and the party would have more whole-heartedly embraced him or her.”

QURESHI NOMINATION: The Atlantic takes a look at the long history of nominations that have diversified the federal judiciary with individuals of varying religious affiliations. Obama’s nomination of Abid Qureshi of Washington to become the first Muslim American federal judge caps this president’s “legacy of diversifying the judiciary, but the Senate seems unlikely to act on it,” The Atlantic says.

ROE V. WADE AND NEW YORK LAW: “As legislation that would codify the Roe v. Wade decision into state law repeatedly has stalled, [New York] state Attorney General Eric Schneiderman on Thursday issued a legal opinion that current state law cannot diminish health protections afforded under that landmark Supreme Court decision or others that have come since,” according to The Albany Times Union.

Renewed Pressure to Lift Blockade, and a Historic Judicial Nominee

Crwp4DAXYAA-OqqGARLAND NOMINATION: Senate Democrats and supporters of Supreme Court nominee Judge Merrick Garland took their efforts to step up pressure for his confirmation to the sidewalk outside the nation’s highest highest court today. Yet Senate Republicans weren’t yielding any ground in refusing to act.

We Need Nine, a group allied with the White House, held a news conference outside the court with former Garland law clerks and Democratic senators. “Republicans have deadlocked our entire system of justice because of the Republican Senate’s dysfunction,” Senate Minority Leader Harry Reid said in advance of the event, according to ReutersNPR reported about the nominee’s record wait, “170-Plus Days And Counting: GOP Unlikely To End Supreme Court Blockade Soon,” and a Huffington Post headline said, “Harry Reid Vows To Jam Up Committee Meetings Until GOP Moves On Supreme Court Vacancy.”

OTHER NOMINATIONS: Will some other judicial nominees advance? The Senate Judiciary Committee was to consider nominees for five district court judgeships in case-backlogged Texas today, as reported by The Texas Tribune. To learn more about what’s going on in Texas, see this Alliance for Justice web page: John Cornyn and Ted Cruz’s Texas: a State of Judicial Emergency.

And on Thursday, the committee is scheduled to vote during a business meeting on three district court nominees. The American Bar Association, meanwhile, issued a statement by president Linda Klein saying the number of judicial vacancies has almost doubled over the course of this Congress to 89 and urging action to promptly schedule floor votes on 20 district court nominees now pending on the Senate calendar.

HISTORIC FIRST: According to The Washington Examiner and other news media, President Obama nominated Latham & Watkins law partner Abid Riaz Qureshi to the U.S. District Court for the District of Columbia on Tuesday, and Qureshi is the first Muslim American nominated for the federal bench. “I commend President Obama for taking this important step in continuing to pick the best and brightest from every community to serve as part of our nation’s judiciary,” said Farhana Khera, executive director of Muslim Advocates.

Heightened Pressure for Senate to Act on Court Nominees, Including Garland

CapitolflagJUDICIAL NOMINATIONS: With Congress returning to work today after its summer recess, “Senate Democrats are planning to ratchet up their pressure on Republicans to hold confirmation votes on President Barack Obama’s judicial nominees, including Edward Stanton III of Memphis,” The Memphis Commercial Appeal reported.

The article, circulated by the USA Today Network, mentioned a report by the Alliance for Justice last year finding “that the pace of judicial nominees confirmed under the GOP-controlled Senate is the slowest in 60 years.” Republicans have disputed that idea. There are 27 judicial nominees awaiting votes on the Senate floor.

“There is absolutely no reason why all of these judges should not be confirmed, other than sheer obstructionism,”  Glenn Sugameli, a lawyer and founder of the nonprofit group Judging the Environment, told the newspaper.

Seven months after Obama nominated U.S. District Judge Merrick Garland for a vacancy on the Supreme Court, meanwhile, supporters are mounting a new effort to spur Senate action, according to CNN. “With the Senate wrapping up its longest recess of the year, communities are refusing to allow senators to go back to the Capitol quietly,” said Michele Jawando of the Center for American Progress. Her group is planning  demonstrations in various states to urge senators to act on Garland’s nomination. As the presidential election plays out, Republican senators have refused to hold hearings.

U.S. SUPREME COURT AND VOTING LAWS: How has the passing of Justice Antonin Scalia affected recent Supreme Court actions on strict state voting laws? “Without conservative Supreme Court majority, voter-law challengers make gains,” The Washington Post reported, focusing on legal challenges to laws passed by Republican legislators in North Carolina and several other states.

Scalia’s death “has removed the Supreme Court as a crucial conservative backstop for such measures,” and appeals courts found voting laws in North Carolina and Texas to have discriminated against Hispanics and African Americans, according to The Post. The Economist, meanwhile, declared in a headline for its column about U.S. politics, “Supreme Court blocks a last-ditch attempt to suppress votes in November.”

KANSAS JUDICIAL ELECTION: You won’t see this happen very often. Four former Kansas governors, two Democrats and two Republicans, are close to embarking “on a three-city tour urging voters to keep partisan politics out of judicial retention elections,” according to The Lawrence Journal-World. In a state Supreme Court retention (up-or-down) election likely to grab national attention, conservatives long critical of the court are targeting four of five justices on the ballot for removal.

The Wichita Eagle noted that Kansas Gov. Sam Brownback, a Republican, could appoint a state Supreme Court majority if the ouster efforts succeed. The judicial races “promise to feature fiery rhetoric on a range of issues, including abortion and school funding,” the newspaper said. The state GOP has taken a stance opposing the four targeted justices and supporting retention of the fifth, a Brownback appointee.

Editorial: Citizens Punished When Senate Won’t Confirm Judges

CapitolflagVacancies on the federal bench below the Supreme Court are getting more editorial board attention as a political standoff over the high court’s vacancy seems unremitting.

Neither party has a sterling record when it comes to acting on judicial nominees when the president represents the opposing party. But in slow-pedaling Obama’s nominees, Senate Republicans have brought obstinate obstructionism to a new low,” thundered a editorial. “They should remember that in withholding timely consideration of judicial nominees, it is not the president they are punishing; it is deluged federal judges and the American citizens they strive to serve.”

In Washington, a Spokesman-Review editorial declared, “These confirmation battles aren’t new, and both parties have been guilty of holding up the process. But vacancies affect individuals and businesses with genuine concerns that need legal resolutions.” To learn more about judicial vacancies and jurisdictions deemed “judicial emergencies,” see Gavel Grab

Scrutiny for High Court Nominee in New Jersey

seal of the supreme court of njNew Jersey Gov. Chris Christie’s nomination of attorney Walter Timpone to the state Supreme Court (see Gavel Grab) is getting extensive scrutiny, at the same time as some applaud for what could be an end to a long political stalemate.

A editorial said that “his nomination alone is noteworthy if it signals the end of an unsavory political crusade to stack the court. The balance and high quality of its justices have long brought well-deserved respect to New Jersey’s highest court. Politics should not be allowed to diminish its stature.” Christie is a Republican, Timpone a Democrat.

The editorial was headlined, “Christie court nominee raises questions,” and it mentioned controversies around Timpone when he served in the U.S. Attorney’s office and regarding his work on the state Election Law Enforcement Commission.

A article reported, “Christie Supreme Court pick scrutinized over political favor,” and a subsequent headline stated, “Christie nominee’s law firm donated big and reaped millions from N.J.”

Editorial Hammers Senate for ‘Neglect’ on Judicial Confirmations

Capitol_domeWhen the U.S. Senate fails to act on routine judicial appointments because of partisan political warring in Washington, it not only harms people who use the courts but also makes Americans cynical about our political system, an Omaha World-Herald editorial says.

The World-Herald focuses on an 18-month-old judicial vacancy for which President Obama nominated attorney Robert Rossiter Jr., who has drawn bipartisan support. Nebraska is one of almost three dozen jurisdictions deemed to be facing a “judicial emergency” given high caseloads, yet Rossiter’s nomination has been “frozen” in the Senate, the editorial says. It concludes:

“By its continued neglect of this important duty, the Senate is announcing its irresponsibility and unfairly burdening Nebraska’s courts. It’s also making an already skeptical public even more cynical about our political system.”