“Blue Slip” Process Vital to Protect Lower Courts

CONSERVATIVE PIPELINE TO THE COURTS: “The Federalist Society has for years been singularly focused on building a farm team of judicial nominees who subscribe to a philosophy that is hostile to the advancement of social and economic progress in the country,” said Nan Aron, president of our sister organization Alliance for Justice, in an article in The New Yorker about the conservative pipeline to the Supreme Courts. “Behind the scenes, during Republican Administrations, they are very engaged in identifying and recruiting for judges candidates who are ultra-conservatives—who are opposed to our rights and liberties across the board, whether it’s women, the environment, consumer protections, worker protections.”

JUSTICE NEIL GORSUCH’S IMPACT ON THE HIGH COURT: BBC News described six upcoming Supreme Court cases in which newly-confirmed Justice Neil Gorsuch could be highly influential, involving President Trump’s travel ban, gun rights, religious freedom, a shooting on the border of Mexico, and voting rights.


BLUE SLIPS NECESSARY TO PROTECT LOWER COURTS: Nan Aron, president of our sister organization Alliance for Justice, urged Democrats to “insist the president avoid nominating judges whose philosophies are extreme…immerse themselves in the records of those nominees, and oppose those whose rulings and writings betray radical views.” Aron explained the necessity of protecting the “blue-slip” process that allows home-state senators to decide whether nominees from their states should move forward in a U.S. News & World Report op-ed. The Senate must be very careful in confirming judges because “real harm will be done to millions of people if appeals courts are packed with ideological extremists, who tend to emerge in the absence of bipartisan consultation,” said Aron.

FEDERAL COURT HOLDS THAT TEXAS VOTER ID LAW IS DISCRIMINATORY: A federal judge ruled that a Texas voter ID law was passed with intent to discriminate against minority voters “despite its proponents’ assertions that it was necessary to combat voter fraud,” reported The Hill. ​

Politico: Trump Plans to Announce SCOTUS Nominee Next Week

TRUMP TO DISCUSS SCOTUS WITH MCCONNELL, SCHUMER, FEINSTEIN: “President Donald Trump will meet Tuesday afternoon with Senate Majority Leader Mitch McConnell, Senate Minority Leader Chuck Schumer and Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, to discuss his Supreme Court choice, according to an administration official,” Politico reported.  

McConnell stated that he is “confident we’ll get a Supreme Court nominee confirmed,” in a FOX News Sunday interview. McConnell has also refused to rule out the use of the “nuclear option,” which would reduce the majority needed to confirm the nominee from 60 to 51 votes.

According to the LA Times, Judge Neil Gorsuch is now the leading contender for Trump’s nominee to the Supreme Court. 

SENATE JUDICIARY COMMITTEE DELAYS SESSIONS VOTE: Senator Dianne Feinstein requested to delay the Senate Judiciary Committee vote on Jeff Sessions’ Attorney General nomination until next week, citing the need for more time to review the nominee and his records. “This nomination is a very big deal,” said Feinstein in an article at The Hill. “Our staff needs time to go through these answers, and we need time to put them in context.”

The vote will be held next week.

SESSIONS WILL NOT RECUSE HIMSELF FROM DOJ TRUMP INVESTIGATIONS: Sessions expressed to members of the Senate Judiciary Committee that he is “not aware of a basis to recuse myself” from investigations involving the president and does not see a problem in impartiality, despite his role in Trump’s campaign for the presidency, reported Politico. “If a specific matter arose where I believed my impartiality might reasonably be questioned, I would consult with Department ethics officials regarding the most appropriate way to proceed,” said Sessions.

Not Too Late for Senate to Confirm Judges Before Adjourning, Group Says

SENATE STILL CAN CONFIRM JUDGES: “Before adjourning for the holidays,” Senate Republicans “should give the nation a gift — a slightly better staffed federal bench, with fewer judicial emergencies — by holding votes immediately” to confirm long pending judicial nominations, the Leadership Conference on Civil and Human Rights urged at Medium.

The Senate confirmed its last judicial nominee more than five months ago. It “has confirmed only two circuit court and 18 district court nominees in the 114th Congress,” and there are 25 fully vetted nominees awaiting Senate votes now, the Leadership Conference said. The nominees could be confirmed in minutes. Meanwhile, the American people are harmed by vacant judgeships, the group said, pointing to a prime example in Idaho where only one active federal judge has been at work since July 2015.

“After the 2008 election, none of George W. Bush’s nominees were left stranded on the Senate floor,” the group concluded. “In fact, a Democratic Senate confirmed 68 of Bush’s lower-court nominees in the final two years of his administration. Today, Republicans shouldn’t be rewarded for obstruction, or for their postponement of justice for many Americans.” Other coverage included McClatchy, “Waiting for [President-elect] Trump: Judicial nominees stalled as Congress readies to adjourn”; and Florida Politics, “In waning days of 114th Congress, progressive coalition presses Marco Rubio to push for voting on judicial nominees.”

STATE COURT NEWS: From Little Rock, Reuters reported, “Birth certificates issued in Arkansas must identify the biological parents even if the child is subsequently adopted by a same-sex couple, a divided state Supreme Court ruled on Thursday.”

Reuters elaborated, “A four-member court majority reversed Little Rock Circuit Judge Tim Fox’s finding in December 2015 that the state’s insistence on identifying both mother and father were infringements on the constitutional due process rights of adoptive gay and lesbian couples.”

Would Senate Republicans Blockade a Clinton Supreme Court Pick?

160621160212-john-mccain-exlarge-169McCAIN’S EXPLOSIVE STATEMENT ON NOMINATIONS:  Sen. John McCain’s statement that Senate Republicans would unite to block any Supreme Court nominees put forward by a potential future Clinton administration “went off like a land mine” with progressive observers, according to The Washington Post.

“I promise you that we will, we will be united against any Supreme Court nominee that Hillary Clinton — if she were president — would put up,” McCain, R-Ariz., told a Pennsylvania radio station on Monday. Later, a McCain spokeswoman backpedaled and said, “Senator McCain will, of course, thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career,” according to The Hill.

Wrote Ian Millheiser of the Center for American Progress, “Imagine a world where [late Justice Antonin] Scalia’s seat — and two others — remain vacant for five years because a Republican Senate refuses to confirm anyone named by the president.”  He addd, “Then imagine that all three of these seats are filled five or nine or thirteen years from today, when Republicans finally manage to gain control of both the White House and the Senate. What reason would Democratic governors have to obey the decisions of such a court?” The issue is likely to be debated when the presidential candidates face off tomorrow, Huffington Post reported.

A FEW PROPOSED QUESTIONS FOR THE DEBATERS: Bloomberg had a piece suggesting several “pressing” questions tied to the Supreme Court for the candidates to answer.  One of them: “Secretary Clinton, if you are elected, will you call on the Senate to confirm [high court nominee] Merrick Garland in a lame-duck session? Will you re-nominate him if the seat is vacant on Jan. 20?” Another: “Mr. Trump, you have released a list of 21 prospective Supreme Court nominees. If you have a vacancy to fill, will you consider anyone who isn’t on that list?”

At The American Prospect, meanwhile, Simon Lazarus had a commentary about the Wells Fargo phony account scandal that was headlined, “Don’t Just Whack Wells Fargo’s CEO/Target his highest enabler: The Supreme Court.”

JUDICIAL VACANCIES: A Courthouse News Service article on dozens of judicial vacancies was titled, “Increase in Judicial Vacancies across Nation, Attributed to Republican Obstruction, Delays Justice.”

Trump Adding to Judicial Candidates List; Arbitration Clauses Criticized

A general view of the U.S. Supreme Court in WashingtonEXPANDED TRUMP LIST OF POTENTIAL COURT PICKS: Debate about filling a longterm vacancy on the Supreme Court, and additional vacancies that might arise in the next few years, is expected to intensify amid news reports that Republican presidential candidate Donald Trump is adding to his list of potential candidates.

NBC reported the list, including Sen. Mike Lee, R-Utah and a member of the Senate Judiciary Committee (who “swiftly shot down the idea,” according to Politico); Neil Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit; Margaret Ryan, a judge for the U.S. Court of Appeals for the Armed Services who clerked for Justice Clarence Thomas; Iowa Supreme Court Justice Edward Mansfield; Georgia Supreme Court Justice Keith Blackwell; Florida Supreme Court Justice Charles Canady; Michigan Supreme Court Chief Justice Robert Young; Tenth U.S. Circuit Court of Appeals Chief Judge Timothy Tymkovich; Judge Amul Thapar of the U.S. District Court for the Eastern District of Kentucky; and Judge Federico Moreno of the U.S. District Court for the Southern District of Florida. Trump had earlier released another list of 11 names of potential high court picks.

Bloomberg said the new names were to be formally released today. A Bloomberg BNA article, meanwhile, about the Supreme Court as an issue in the 2016 election, reported, “For the first time in a long time, the presidential and Senate races are about Supreme Court nominees for many people,” according to Mark C. Miller, of Clark University, Worcester, Mass., a judicial politics professor.

ARBITRATION CLAUSES AND WELLS FARGO: A fake account scandal at Wells Fargo & Co. (see Gavel Grab for background) continues to generate media coverage about forced arbitration clauses shielding banks from class-action lawsuits by customers.

“Customers who had bank or credit card accounts opened in their name without their knowledge face an uphill battle even getting a court to hear their case because of mandatory arbitration contract clauses that protect banks from class-action suits, consumer advocates say,” NBC reported about the Wells Fargo scandal fallout.

At USNews.com, Dean Clancy wrote in a commentary, “It transpires that, to avoid lawsuits, the San Francisco-based megabank has been invoking boilerplate clauses in its customers’ bank account contracts that say the customer cannot sue the company but rather must take their complaints to private, binding arbitration. Arbitrators are notoriously less favorable to customer-plaintiffs than are juries.” And focusing on the arbitration clauses, a Huffington Post article was headlined, “The Infuriating Reason Wells Fargo Got Away With Its Massive Scam For So Long.”

You can learn more about this issue by reading the Justice Watch blog post of our sister organization, Alliance for Justice, titled, “Why the Wells Fargo Scandal Shows the Need to End Forced Arbitration.”

‘REGULAR ORDER’ AND JUDICIAL NOMINATIONS: Senate GOP leaders can start rectifying the [judicial] vacancy crisis and restoring regular order by according all nominees on the floor votes before leaving to campaign” this fall, law professor Carl Tobias of the University of Richmond urged in a (Louisville) Courier-Journal op-ed. The GOP has made promises to restore “regular order” in its business but has fallen short on confirming judicial nominees, Tobias wrote.

Regarding the judicial vacancy that’s gotten the most national attention — the one on the Supreme Court — The Hill reported, “Senate Minority Leader Harry Reid (D-Nev.) blocked a bipartisan animal abuse bill on Thursday amid a stalemate over Supreme Court nominee Merrick Garland.” President Obama’s nominee for the high court has been waiting more than six months for a hearing, in the face of a Senate Republican blockade.

A ‘Starving’ Federal Judiciary is Riddled With Vacancies

empty-court_shutterstock_bikeriderlondonA ‘STARVING JUDICIARY’: Thanks to Senate obstruction of President Obama’s judicial nominees,  “he will likely be the first executive in nearly two decades to leave office with federal district courts less staffed than when he was sworn in,” The District Sentinel reported.

Right now there are 75 district court vacancies, up from 41 when Obama moved into the White House, or an 83 percent increase. The District Sentinel headlined its article, “Congressional Report Details A Starving Judiciary.” You can see a Congressional Research Service report on district court vacancies by clicking here and on appeals court vacancies by clicking here; they were released by the Federation of American Scientists.

DIMMING PROSPECTS FOR GARLAND CONFIRMATION?: At Bloomberg, law professor Noah Feldman of Harvard suggested that if Hillary Clinton defeats Donald Trump in November, chances for the Senate confirming Supreme Court nominee Merrick Garland in a lame-duck session don’t look great. Feldman drew a distinction between GOP ideology and partisanship. “The upshot is that Garland’s chances for confirmation now seem smaller than they did a few months ago. … Republicans might have to sacrifice a more liberal court to protect their individual political interests. But for elected politicians, that’s an easy trade to make,” he wrote.

ALLEGATIONS OF BANKROLLING A TOP JUDGE: “A federal racketeering lawsuit involving State Farm and allegations of funneling money into the election of a state judge has been granted class-action status, potentially benefiting more than 4 million policyholders,” The Chicago Tribune reported.

The allegations involve an Illinois Supreme Court election won by Lloyd Karmeier in 2004 and his voting later with a court majority to overturn a $1 billion award against the company. Karmeier, who has just been elected the court’s next chief justice, is not named as a defendant in the RICO lawsuit, Bloomberg said. There are years of twists and turns in the litigating that led to this point, and questions raised about “dark money” in judicial elections; you can learn more from earlier Gavel Grab posts.

Remaking U.S. Courts to Begin Soon? More Judges Are Retiring

why-the-judicial-vacancy-crisis-should-matterREMAKING LOWER COURTS: Where are all the federal lower-court judges going? They’re retiring at a record rate, according to a Washington Examiner column by Paul Bedard, asserting this means the next president will “remake” our U.S. courts.

“At a rate of more than one a week, federal circuit and district judges are quitting full-time work and going on ‘senior status,’ which creates a bench vacancy but keeps them on the payroll to help with backlogs,” Bedard wrote.

Those judges taking “senior status” have hit a new high for the last three decades, the column added, with 56 circuit courts of appeal and district judges leaving this year compared to 38 in the final year of President George W. Bush’s administration. For more data about judicial vacancies and nominations, check out the website of our sister organization, Alliance for Justice.  

LEAHY ON SUPREME COURT VACANCY: In a Constitution Day essay for The Washington Times, Democratic Sen. Patrick Leahy of Vermont said there “is still time for the Senate to correct its course and consider Chief Judge [Merrick] Garland’s nomination” to the Supreme Court before that court convenes next month. “There should not be an empty seat on the bench when the Supreme Court convenes on the first Monday in October,” Leahy insisted. “If there is, it will represent the disrespect that Senate Republicans have not only for the president’s powers under the Constitution but for the independent judiciary that the Constitution created.” Leahy is senior Democrat on the Senate Judiciary Committee.

Nonetheless, “Senate Republican leaders are sending a blunt message to Merrick Garland: You aren’t getting on the Supreme Court this year — not even if Hillary Clinton wins in November,” CNN reported, based on remarks by Senate Majority Leader Mitch McConnell and his chief deputy, Sen. John Cornyn.

NO MORE ‘GOLDEN WEEK’: The Supreme Court declined to restore a short period of in-person early voting known as Golden Week, when Ohioans could both register to vote and cast their ballot on the same day, according to The New York Times. As viewed by Mother Jones, “The Supreme Court Just Dealt a Blow to Voting Rights Advocates.”

Editorial: Partisan Politics on Judgeships Hurts Average Citizens

CapitolflagIt’s not the president that his Senate foes are hurting when they stall confirmation of federal judicial nominees, says an editorial in New Jersey’s The Record newspaper, it’s the American people that are harmed:

“Conservatives may think they’re hurting the president by doing this, but it’s not Obama who has to wait months or years to get his day in court with a judge whose staff is drowning in paperwork from such a heavy caseload. It’s average citizens waiting for their day in court, for justice to be served.”

While the editorial notes the Senate’s confirmation this week of a new federal judge for New Jersey (see Gavel Grab), it says the federal court system in the state has been deemed a “judicial emergency” for its caseload, and three of its 17 federal judgeships still are vacant. “While partisanship in Congress is hardly a new revelation, the strain it is putting on the federal court system is unacceptable,” the editorial says. 

Scholar: U.S. Courts ‘Mired … in Political Gridlock’

A scholar who tracks federal court nominations in the U.S. has published in the British Guardian a sorry picture of partisan politics and gridlock dragging down the confirmation process in Washington, thereby undermining fair and impartial courts.

The commentary by Carl Tobias, a law professor at the University of Richmond, is titled, “Washington has mired courts in political gridlock – and justice is the victim/Ever since the Republicans recaptured the US Senate, the number of unfilled judicial seats has soared to crisis levels.”

Out of 846 federal judgeships, 72 are vacant, Tobias reports. In 2015, the 11 nominees confirmed by the Senate were the fewest since 1960. Tobias concludes with pessimism about the political landscape this year: (more…)

Slowdown in Confirming U.S. Judges Blamed on Politics

CapitolflagRepublicans controlling the U.S. Senate “are flexing their powers to slow down the process” of confirming President Obama’s nominees for the federal courts, The Washington Times reports, shortly after the Senate confirmed only its 10th judge this year.

The slowdown follows action by Democrats, when they were controlling the Senate, to change filibuster rules in order to accelerate the confirmation of judges, the article says. It is headlined, “Obama judicial nominees in limbo as ‘nuclear option’ backfires on Democrats.”

In The Hill, a piece by Prof. Carl Tobias of the University of Richmond School of Law applies the themes of Thanksgiving to the process of confirming federal judges, and notes that whereas federal judicial vacancies stood at 90 in August 2009, they now have been reduced and total 66. (more…)