This week the Senate is scheduled to vote on the nominations of two highly qualified Federal Circuit Court nominees who have been pending on the Executive Calendar since last year: Judge Denny Chin and Judge Thomas Vanaskie. The Senate is also scheduled to vote on the nomination of two highly qualified nominees to the D.C. Superior Court, also pending on the Executive Calendar since last year: Judge Marisa Demeo and Stuart Nash.
In the 111th Congress, Senate Republicans have consistently used partisan tactics to delay the confirmation of President Obama’s nominations to fill vacancies on Federal district and circuit courts. The Senate has confirmed only 18 of the President’s district and circuit court nominees this Congress, fewer than the 25 nominations currently pending on the Executive Calendar. [Administrative Office of the U.S. Courts, Judicial Confirmations] Eighteen of those nominations were reported by the Judiciary Committee without a single dissenting vote, and three others with significant bi-partisan support.
By this point in President Bush’s first term, with a Democratic majority, the Senate had confirmed 45 circuit and district court nominees, routinely considering and confirming nominations only days after they were reported by the Judiciary Committee. Only 12 of President Obama’s circuit and district court nominations were confirmed in his first year in office. That is the lowest number of judicial confirmations in the last fifty years, and reflects the strategy of Senate Republicans to use procedural tactics to prevent the confirmation of ths Administration’s non-controversial and highly qualified judicial nominees.
Today, there are more than 100 vacancies in the district and circuit courts, adding to the mounting caseload that already exists for sitting judges. [Administrative Office of the U.S. Courts, Summary of Judicial Vacancies] Unfortunately, Senate Republicans are exacerbating this backlog and are relying on partisan politics to obstruct President Obama’s judicial nominations. These tactics have serious consequences for the timely and fair delivery of justice and do not serve the American people.
Republicans Are Obstructing Highly Qualified and Noncontroversial Nominations
President Obama’s nominees are facing unprecedented delay due to Republican obstruction. Comparing their first two years in office,President Obama’s Circuit Court nominees are waiting five times longer (an average of 119 days) to be confirmed than President Bush’s nominees were after being favorably reported by the Judiciary Committee. President Obama’s District court nominees are waiting nearly twice as long (an average of 41 days) as President Bush’s nominees to be confirmed after being favorably reported by the Judiciary Committee. [Judiciary Committee data]
Senate Republicans have prevented the confirmation of dozens of highly qualified, mainstream nominees, often without any explanation for their obstruction. Twenty-two federal judicial nominations have been pending for more than a month. This delay has significantly slowed the pace of confirmations and has left the courts without critical support. For many months Republicans have prevented up or down votes on many nominations, including the following nominees:
· Judge Denny Chin to the 2nd Circuit Court of Appeals. In October 2009, President Obama nominated Judge Chin. Judge Chin currently serves on the United States District Court for the Southern District of New York. In December, he was favorably reported by the Judiciary Committee by unanimous consent. Judge Chin received a rating of “unanimously well qualified” from the American Bar Association.
There are currently four vacancies on the 2nd Circuit. All four of the vacancies are considered judicial emergencies. [Administrative Office of the U.S. Courts, Judicial Emergencies] The court typically hears over 6,000 cases per year. [Administrative Office of the U.S. Courts, U.S. Courts of Appeals, Table B-1]
· Judge Thomas Vanaskie to the 3rd Circuit Court of Appeals. In August, President Obama nominated Judge Thomas Vanaskie. Judge Vanaskie currently serves on the United States District Court for the Middle District of Pennsylvania. In December, he was favorably reported by the Judiciary Committee by a vote of 16 to 3. Judge Vanaskie received a rating of “unanimously well qualified” from the American Bar Association.
There is currently one vacancy on the 3rd Circuit and this vacancy is considered a judicial emergency. [Administrative Office of the U.S. Courts, Judicial Emergencies] The court typically hears nearly 4,000 cases per year. [Administrative Office of the U.S. Courts, U.S. Courts of Appeals, Table B-1]
Senate Republicans have failed to maintain the long tradition of confirming the President’s non-controversial nominations in a timely manner. President Obama’s non-controversial and highly qualified nominees have faced uncertainty and delay. Republicans have repeatedly refused to enter into time agreements to vote on nominations, yet ultimately vote in favor of the nominees that they had held up. Under President Bush, more than 100 of his federal judicial nominations were confirmed by voice vote. Since President Obama has taken office, Senate Republicans have agreed to voice votes on only four nominees, even though many of the nominees ultimately received overwhelming support.
· Judge Beverly Baldwin Martin of Georgia, who was nominated to the Eleventh Circuit by President Obama in 2009, was reported by the Judiciary Committee in July 2009 by a voice vote with no dissent. Republicans stalled Senate action on her nomination, even though she had the full support of both Republican Georgia Senators. Judge Martin waited 132 days on the Executive Calendar before Republicans allowed an up-or-down vote on her nomination. When the Senate finally voted on her nomination, she was confirmed 97 to 0.
· Judge Barbara Keenan of Virginia, who was nominated to the Fourth Circuit by President Obama in 2009, was reported by the Judiciary Committee in October 2009 by unanimous consent. Unfortunately, Republican opposition prevented her nomination from moving forward and the Senate was required to invoke cloture to end a filibuster of her nomination. When the Senate finally voted on Judge Keenan’s nomination in March 2010, after 124 days on the Executive Calendar, she was confirmed 99 to 0.
· O. Rogeriee Thompson of Rhode Island, who was nominated to the First Circuit by President Obama in 2009, was reported by the Judiciary Committee in January 2010 by voice vote. Judge Thompson waited 55 days on the Executive Calendar before Republicans allowed an up-or-down vote on the nomination. When the Senate finally voted on the nomination, she was confirmed 98 to 0.
Senate Republicans are also slowing the President’s nominations to the D.C. Superior Court. The D.C. Superior Court handles civil, criminal, tax, probate, domestic violence, child custody, family matters and other legal issues for residents of the District of Columbia.(The Senate Committee on Homeland Security and Governmental Affairs has jurisdiction over nominations to this court, and these nominations are not included in the statistics for federal judicial nominations under the jurisdiction of the Senate Judiciary Committee.)
· Judge Marisa Demeo to the D.C. Superior Court. In March 2009, President Obama nominated Judge Demeo to be an Associate Judge for the D.C. Superior Court. Judge Demeo currently serves as a Magistrate Judge in the Criminal Division of the D.C. Superior Court. In May 2009, her nomination was favorably reported by the Senate Committee on Homeland Security and Governmental Affairs by voice vote. Even though Judge Demeo has the support of the D.C. Judicial Nomination Commission and previously served with distinction as an Assistant United States Attorney, Republicans have refused to agree to a vote on her nomination in the 13 months since she was first nominated.
· Stuart Nash to the D.C. Superior Court. In June 2009, President Obama nominated Stuart Nash to be an Associate Judge for the D.C. Superior Court. Mr. Nash currently serves as the Associate Deputy Attorney General and Director of the Organized Crime Drug Enforcement Task Force Program at the U.S. Department of Justice. In July 2009, his nomination was favorably reported by the Senate Committee on Homeland Security and Governmental Affairs. He was nominated by both President Bush and President Obama.
There are currently 5 vacancies on the D.C. Superior Court. The Court has an exceptionally large caseload of over 100,000 cases per year and depends on each judge to manage a full caseload. Vacancies on the D.C. Superior Court have been described as creating a “dire situation” because these gaps prevent the timely administration of justice. [Letter from Chief Judge Satterfield to Senate Majority Leader Reid, 3/12/10]
Republican Delay Tactics Are Creating Gridlock and Inefficiency
Long delays and extended vacancies are creating a mounting caseload for an overextended federal court system. The federal judicial system is already burdened. In 2008, the average caseload for a three-judge appeals panel was 1,049 per judge. [Alliance for Justice, Justice Can’t Wait] With mounting delays and absences, judges sitting in courts with vacancies are seeing their caseloads grow to unmanageable levels. Stop-gap measures to address the vacancies and unusual workloads are not in the best interest of the legal community.
Litigants are being forced to wait months and years before their cases are heard. In United States District Courts, half of all litigants face nearly nine months or more from the time they file their cases to the final resolution of their case. [Administration Office of the U.S. Courts, Judicial Caseload Profile, 2009] In 2009, for civil litigants with trials, the average median time from filing to trial was over 2 years (25.3 months). [Administration Office of the U.S. Courts, Judicial Caseload Profile, 2009] As judicial vacancies have been rising, so too have the delays for litigants.
Confirming non-controversial nominations in regular order could alleviate some of these problems. If the Senate were able to confirm President’s Obama’s current nominees, the vacancies could be filled immediately and caseloads could be more evenly distributed speeding the disposition of cases. Litigants face increasing uncertainty as the length of time between a trial and the disposition of a case grows. Senate Republicans should allow up-or-down votes on the Senate floor on all nominations soon after they have cleared the Senate Judiciary Committee.
Tactics of delay and obstruction by Senate Republicans have caused a rise in “judicial emergency” vacancies. There are currently 41 vacancies classified as “judicial emergencies” based on the size of the caseload in that court or the amount of time the seat has been empty. [Administrative Office of the U.S. Courts, Judicial Emergencies] The longer the vacancies remain open, the more destructive the situation becomes and the longer citizens will be forced to wait for justice.