Archive | Judicial Nominations

Nuclear Fallout Continues

Now that Senate Democrats have eliminated the filibuster for judicial and executive branch nominees, it will be somewhat easier to confirm potentially controversial nominees to the federal bench.  In anticipation of this shift, Ian Millhiser of Think Progress identified “5 People Who Could Be Confirmed To The Supreme Court Once The Filibuster Is Nuked,” including former OLC nominee Dawn Johnsen and Stanford Law’s Pamela Karlan. Yet the new rule cuts both ways, and will make it easier to confirm a Republican President’s nominees as well.

This week, Millhiser warned of the horrors that could result should a Republican Preisdent have the opportunity to replace Justice Ruth Bader Ginsburg on the Supreme Court. Given the end of judicial filibusters, expect to hear an increasing number of progressive legal analysts calling for Justice Ginsburg’s retirement from the Court so that President Obama may name her successor. (And Justice Breyer too.) Although Senate Democrats purported to leave the possibility of filibusters for Supreme Court nominees in place, no one believes this distinction will hold for even a moment should a cloture vote on a Supreme Court nomination fail. And without a potential filibuster, progressive groups have little hope of blocking the confirmation of a qualified conservative nominee — and without this threat there is less reason for a President to nominate a more “mainstream” or less controversial nominee. All the more reason for progressives to demand Supreme Court vacancies now. [...]

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Who “Won” the Nuking of Filibusters?

Last week Senate Democrats voted to end filibusters of all executive branch and lower court nominees.  The filibuster of Supreme Court nominees will almost certainly follow if and when there is a filibuster of a Supreme Court nominee. [That is, it will be eliminated as well.]  Who wins and loses from this change in the rules?  It depends who you ask.  Steve Hayward argues conservatives are the winners.  Scott Lemieux says that liberals won.  Eric Posner writes that centrists are the real losers, while The Hill says the biggest loser could be Kathleen Sebelius.

UPDATE: Additional thoughts from Judge J. Harvie WIlkinson III.

[Note: Post revised as indicated above.] [...]

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Nukes for the NYT, But Not for Thee

In May 2005, the NYT editorial board insisted that the filibuster of judicial nominations was “part of the Senate’s time-honored deliberative role and of its protection of minority rights.” Invocation of the “nuclear option,” the Times insisted, would “desecrate” this tradition. “The damage would be incalculable,” the Times warned.

Fast forward eight years and, as Patterico notes, the NYT‘s is singing a different tune. Yesterday’s NYT editorial on Senate Democrats’ invocation of the “nuclear option” insisted there was “ample precedent for this kind of change” and cheered the move for heralding “a return to the democratic process of giving nominees an up-or-down vote, allowing them to be either confirmed or rejected by a simple majority.”

UPDATE: The NYT first came out in favor of eliminating the filibuster of nominees in this January 2012 editorial.   I had forgotten this, which is funny given that I blogged about it at the time.

TPM claims the WSJ flipped as well, but I’m not sure I read their editorial the same way.  It’s critical of Senate Democrats, to be sure, but it also chides those Republicans who had opposed the GOP going nuclear in 2005 out of fear it might prompt Democrats to do the same. [...]

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Senate Goes Nuclear, Expect Fallout

As threatened, Senate Majority Leader Harry Reid invoked the so-called “nuclear option” to end the filibuster of presidential nominations. The Washington Post reports:

The vote to change the rule passed 52 to 48. Three Democrats — Sens. Carl Levin (Mich.), Joe Manchin III (W.Va.) and Mark Pryor (Ark.) — joined 45 Republicans in opposing the measure. Levin is a longtime senator who remembers well the years when Democratic filibusters blocked nominees of Republican presidents; Manchin and Pryor come from Republican-leaning states.

Levin denounced both Republicans and Democrats in a floor speech after the vote. He said GOP obstruction of Obama’s nominees has been “irresponsible” and “partisan gamesmanship.” Republicans “are contributing to the destruction of an important check against majority overreach,” he said.

But Democrats have used the filibuster in the past, and “changing the rules by fiat” means that “there are no rules” in the Senate any longer,” he said. “Today we are once again moving down a destructive path,” Levin said.

According to Reid, the rules change only applies to executive branch and lower court judicial nominations, and does not apply to Supreme Court nominations.  That idea is a joke, as Levin’s comments imply  While there are colorable arguments as to why the Senate might want to have different rules for executive branch and judicial nominations, the line drawn by Senator Reid will not stand.  As several Republicans threatened before the vote, if and when there is a Republican majority in the Senate again, there will be no filibuster of a President’s Supreme Court nominees.

As I noted earlier today, I would have preferred a deal in which, say, nominees were swapped to end the impasse (as was done to end the blockade of President Bush’s Michigan nominees to the U.S. Court of Appeals for the [...]

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A Time to Go Nuclear?

In February 2003, Miguel Estrada became the first ever nominee to a federal appellate court to be successfully filibustered when a majority of Senate Democrats voted against cloture on his nomination.  Estrada had been nominated to fill on a seat on the U.S. Court of Appeals for the D.C. Circuit, and was widely seen as a potential Supreme Court nominee. He was the first appellate nominee to be felled by a filibuster, but he would not be the last. During the Bush Administration, Senate Democrats successfully blocked cloture on 10 of President Bush’s appellate nominees.  All ten enjoyed majority support and would have been confirmed on a bipartisan vote had they not been filibustered.  Five of these nominees were eventually confirmed after the Gang of 14 deal and a swap of nominees for the U.S. Court of Appeals for the Sixth Circuit. The other five were not.  (For more on the history of judicial nominations, see this post and the links therein.)

During the Obama Administration, Senate Republicans have returned the favor, initially blocking cloture on Ninth Circuit nominee Goodwin Liu, followed by D.C. Circuit nominee Caitlin Halligan. This year, Senate Republicans have successfully filibustered three more nominees to the D.C. Circuit, arguing that the Obama Administration’s insistence on filling these three seats is an effort to tilt the ideological balance of the D.C. Circuit (particularly given that the court’s workload is down and there are unfilled judicial emergencies on other courts).  As I noted here, the arguments Republicans make in support of this move parallel the arguments once made by Senate Democrats to justify their obstruction of judicial nominees during the last three Republican presidents.  I don’t find these arguments compelling when made by either side, but what’s sauce for the goose is sauce for the gander. [...]

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Professor David Barron Nominated to the First Circuit

This afternoon President Obama nominated Harvard Law School professor David Barron to a seat on the U.S. Court of Appeals for the First Circuit.  Professor Barron is currently the S. William Green Professor of Public Law and previously served as the Acting Assistant Attorney General for the Office of Legal Counsel in the Department of Justice. He also clerked for Justice John Paul Stevens. [...]

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EPA Fares Well in D.C. Circuit

As I noted here, some progressives argue that the U.S. Court of Appeals for the D.C. Circuit is engaged in a “judicial jihad against the regulatory state,” environmental regulations in particular.  It seems someone forgot to tell the judges on the D.C. Circuit, for as Greenwire reports, the Environmental Protection Agency fares rather well in a court that is allegedly stacked with anti-regulatory zealots, and a large share of the EPA’s losses come from environmentalist groups or other interests seeking more stringent regulation, not regulatory relief.  From the story:

Obama and Senate Democrats say the nominees to the U.S. Court of Appeals for the District of Columbia Circuit are needed to fill out its 11-member bench and restore balance to a court that has been dominated by Republican appointees.

But a close look at rulings over the last year in the environmental, energy and conservation realm shows that the administration — and in particular, U.S. EPA — has fared well at the D.C. Circuit. . . .

The D.C. Circuit has ruled on more than 20 significant challenges to EPA regulations since June 2012. Of those, EPA won at least a dozen, or 60 percent, a better performance than EPA had at the circuit during George W. Bush’s administration, when it frequently lost to environmentalists. On top of the dozen, the agency scored partial wins in other cases by prevailing on some issues while losing on others.

While the Obama EPA has fared rather well in the D.C. Circuit, the Bush EPA did not — even in front of the same judges. [...]

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From A Crawl to A Sprint: Obama and the D.C. Circuit

On June 4, 2013, President Obama made three nominations to the U.S. Court of Appeals for the D.C. Circuit.  It remains to be seen how many of these nominees will be confirmed to this essential court. Republicans are in no rush to fill more seats on this Circuit, having already defeated one nominee to this court.  Some predict another confrontation over the use of the filibuster should Republicans refuse to allow floor votes on all three nominees.  Given the possibility of a D.C. Circuit confirmation fight, this post reviews what’s happened with D.C. Circuit nominees since 2009.

When President Obama assumed his office, there were two vacancies on the eleven-member court.  On was created when Judge Raymond Randolph took senior status in 2008.  The other when then-Judge John Roberts was confirmed to the Supreme Court.  President Bush had nominated assistant attorney general Peter Keisler to the seat in January 2006, but the Senate sat on his nomination for the next three years.  The Senate had also eliminated a seat on the Circuit in 2007.

President Obama was not quick to make any nominations to the D.C. Circuit.  Although there were reports he considered nominating then-White House Counsel Greg Craig, the President did not act until September 29, 2010, when he nominated Caitlin Halligan.  There were rumors the White House looked at nominating Sri Srinivasan then as well, only to back down when progressive interest groups raised concerns about his representation of corporate clients in private practice.

In 2011, another seat on the D.C. Circuit came open when Judge Douglas Ginsburg announced he would take senior status, and yet Halligan remained the lone nominee.  Republicans opposed her confirmation, going so far as to filibuster her on the floor of the Senate.  Her nomination was thus returned to the White [...]

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Is the D.C. Circuit a “Broken Circuit”?

Earlier this summer, the Environmental Law Institute’s Environmental Forum featured a cover story on the U.S. Court of Appeals for the D.C. Circuit by Doug Kendall and Simon Lazarus of the Constitutional Accountability Center entitled “Broken Circuit.”  As the sub-head promised, this article made the case that “A new breed of activism on the Court of Appeals for the D.C. Circuit — for environmental cases second in importance only to the Supreme Court and the central venue for high-profile lawsuits — threatens decades of progress.”  The Forum also included my brief counterpoint essay, “The D.C. Circuit Is Hardly in Crisis.”  This short piece was intended as a response to the Kendall-Lazarus piece though, as is the Environmental Forum‘s usual practice, I had to write my piece without having seen the article to which it was responding.

The Kendall-Lazarus article makes several conventional points.  It noted that the D.C. Circuit is of particular importance in environmental law because it hears the lion’s share of challenges to federal regulatory programs.  This is both because of its location and because, under some statutes, the D.C. Circuit has special or even exclusive jurisdiction over petitions challenging agency rules.  One consequence is that the D.C. Circuit has been the locus of controversy.  Senators and activist groups tend to pay more attention to D.C. Circuit nominees than to those for other circuits.  Thus it is no surprise that the first appellate judicial nominee ever defeated by a filibuster (Miguel Estrada) was a D.C. Circuit nominee, as was one of President Obama’s nominees who Republican Senators successfully blocked.

The Kendall-Lazarus article repeats Washington Post columnist Steven Pearlstein’s charge that the D.C. Circuit is dominated by  “a new breed of activist judges [who] are waging a determined and largely successful war on federal regulatory agencies.”  This is [...]

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Judicial Nominations and Competing Constitutional “Mainstreams”

In a recent column, Harvard Law Professor Cass Sunstein argues that Republican senators who have filibustered some of Barack Obama’s judicial nominees are more to blame than Democrats who previously filibustered GOP nominees because the Democrats only tried to block nominees who were “out of the mainstream,” while the GOP targeted any nominees whom they “strongly disagree” with on constitutional issues. Sunstein does recognize that “Senate Democrats deserve a fair share of the blame for this dismal situation” because “their use of the out-of-the-mainstream test sometimes veered disturbingly close to the disagreement test.” But he claims that the GOP has gone further than the Democrats did.

Sunstein’s critique is overdrawn. If the Republicans really tried to filibuster any Obama nominees with whom they have strong disagreements, they would have filibustered virtually all of them, not just a few. In reality, they have targeted nominees who they thought were even more liberal than the average nominees put up by a Democratic administration and/or had a “paper trail” that made them unusually vulnerable to attack. Democrats pursued a similar strategy during recent Republican administrations.

Most of the nominees that Democrats aggressively opposed during the Reagan, Bush I, and Bush II administrations were well within the mainstream of modern conservative constitutional thought. That was certainly true of high-profile cases such as Miguel Estrada and Peter Keisler. Similarly, most of the Democratic nominees targeted by Republicans under Clinton or Obama were well within the mainstream of modern liberal constitutional theory.

The underlying reality here is that there is a deep chasm between mainstream conservative views on constitutional interpretation and mainstream liberal ones. The standard-issue conservative Republican jurist believes that the Constitution provides extensive protection for gun rights and property rights, that the courts should enforce significant federalism-based constraints on Congress’ powers, that all [...]

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Blue Slips vs. Filibusters

In the comments to my recent judicial nomination posts, some have wondered why I insist on distinguishing between blue slips and filibusters.  So I thought I’d quickly address this point before posting on how to end the obstruction of judicial nominees.  The reason for distinguishing between filibusters and blue slips is that these two modes of obstruction — both of which I would like to see abolished — operate quite differently.  Put simply, the costs and benefits of exercising each method of obstruction are quite different, and this affects how and when each is used — and affects the likelihood of reforming or eliminating either.

Here are some key differences.  Under Senate tradition, the Senate Judiciary Committee will not proceed with a nominee unless both home state Senators return blue slips on that nominee.  If a slip is withheld, the nomination will not move.  This is justified on grounds of “courtesy” to the home-state Senator and is supposed to encourage the White House to consult with home state Senators before making nominations.  For the record, neither party has been particularly consistent in its enforcement of the rule, or in consultation, but this is the general tradition.  In practice, the blue slip tradition gives a single Senator — but only the home-state Senator — the ability to block a judicial confirmation.  Cooperation of the Senator’s caucus is not required.  Thus, Jesse Helms could hold up nominees to what are considered North Carolina seats on the Fourth Circuit in retaliation for the Senate’s failure to confirm Terence Boyle and Carl Levin could hold up nominees to Michigan seats on the Sixth Circuit in retaliation for the Senate’s failure to confirm Helene White.  Blue slips only work if the Senate Judiciary Committee Chairman observes them — and there is little move to [...]

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On Judicial Confirmations — History and Numbers

Partisans in judicial nomination fights like to play the victim.  As each side tells it, obstruction of judicial nominees is all the other side’s fault.  Each act of contemporary obstruction is justified by some act of obstruction that came before.  The reality, however, is that there are no clean hands in these fights any more.  For over twenty-five years the two parties have been engaged in an escalating game of tit-for-tat.  Each time the tables are turned, the opposition party retaliates in kind, and then some.  Given the reactions to my post yesterday on judicial nominations, I thought it would be worth recounting the history (as I have before) — with the relevant data — and then to explain what it means.  I’ll follow this up with a post on what I think should be done, in light of this history, to end the obstruction of judicial nominees.

In the context of appellate nominations, Senate Democrats decided to begin opposing some of President Reagan’s nominees in 1986.  Although they did not frame their opposition in ideological terms, this initial effort was clearly motivated by a desire to prevent the Reagan Administration from stocking the courts with judicial nominees who shared the administration’s conservative judicial philosophy.  This initial effort yielded a few victories — a few nominees were defeated (including Jeff Sessions, who now sits on the Senate Judiciary Committee) — but 88 percent of Reagan’s appellate nominees were confirmed.  Efforts to block conservative judicial nominees by delaying confirmation increased during the latter half of George H. W. Bush’s Administration and, as a consequence, only 79 percent of his appellate nominees were confirmed.  (Data on confirmation rates are taken from this Brookings Institution report by Russell Wheeler.)

President Clinton’s nominees had relatively smooth sailing during his first two years, [...]

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The NYT‘s Selective History on Judicial Filibusters

Over the weekend, the NYT published a highly misleading story about Republican filibusters of President Obama’s judicial nominees. Consider the very first sentence of the article: “A fresh feud over federal judgeships has again begun to agitate the Senate, with Republicans so far blocking President Obama from filling any of the four vacancies on the nation’s most prestigious and important appeals court.” Republicans have stopped the President from “filling any of the four vacancies”? That would be quite a trick, given that President Obama has only made two nominations for that court — Caitlin Halligan and Sri Srinivasan [– and only one of them, Halligan, has even come up for a vote]. These nominations were first made in 2010 and 2012. [Had the President made more nominations — and the Republicans had blocked them all (something that could still happen) — it would be fair to say Republicans were “blocking President Obama from filling any of the four vacancies.”]

Halligan, the story notes, was “nominated to fill the vacancy left by Judge John G. Roberts Jr. when he left to join the Supreme Court in September 2005.” But wait. President Obama nominated Halligan in September 2010 — five years after Roberts was confirmed. What happened in the interim? Well in 2006 then-President Bush nominated Peter Keisler to replace Roberts. Keisler was eminently qualified and endorsed by the Washington Post, but he never got a vote. Like some of Bush’s other nominees to the D.C. Circuit — most notably Miguel Estrada, whose nomination was repeatedly filibustered until he eventually withdrew — Keisler was blocked.

There’s still more misleading material in the story, as Ed Whelan documents here. Among other things, the story claims that the “Gang of 14” deal to allow some of President Bush’s blocked nominees to [...]

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Judicial Nominations of Legal Scholars: How Much Does Prior Scholarship Indicate Likely Decisions on the Bench?

CUNY Law Professor Jenny Rivera has been nominated for a position on the New York Court of Appeals. In a hearing earlier this week, some of the questioning focused on her article, An Equal Protection Standard for National Origin Subclassifications: The Context that Matters, 82 Wash. L. Rev 897 (2007), the abstract of which includes the following:

This Article argues that context that is specific to and conscious of the experience and legal position of national origin groups matters just as much as racial themes and context in race-based legislation. It analyzes equal protection challenges to Latino classifications and presents a new approach to equal protection doctrine and discourse in which Latino national origin subclassifications are contextualized and recognized as legally relevant and operative. The Article demonstrates that the context that matters in national origin classification cases depends on factors associated with country of origin subclassifications, as well as the homogeneous classification of all persons of Latin American and Latino Caribbean descent as Latino.

This Article’s proposed uniform standard of review for national origin subclassifications depends upon the legal, historical, cultural, and political context of subclasses. To justify a contextualized definitional and constitutional analysis, it draws on the history surrounding the definition of “Latinos” and “Hispanics” in the United States. Subclassifications are constitutional if (1) the initial legislative or administrative decision to classify by national origin satisfies the current strict scrutiny standard, which requires a narrowly-tailored remedy that serves a compelling governmental interest; and (2) the subclassifications are based on the intragroup dynamics and histories of the relevant target subclass, focusing on the experience of individuals within the subclass as “Latinos” and as subclass members.

Rivera was asked in the hearing if and how the views advocated in her article reflected how she would interpret and apply the [...]

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