Courting Disaster: An Update

Goodwin Liu

President Obama is losing an opportunity to put his stamp on the federal judiciary while doing little to stem the crisis caused by the growing vacancy rate in the federal courts. With their large majority in the Senate last term, the Democrats allowed Republicans to stymie their tepid efforts to confirm Obama's judicial nominations.  Compounding this failure was President Obama's inexplicable failure to nominate more judges and make a push for his worthy, and mostly non-controversial nominees.  This term appears to be little better.

The Senate has confirmed 15 judges, which has kept up with 15 new vacancies, and Obama has nominated another 17 federal judges.  But, as Jonathan Bernstein points out, there are still 96 vacancies — "including a still-astonishing 50 seats for which Obama hasn’t named anyone."  While the Senate has confirmed non-controversial judicial nominees (those who were unanimous or almost unanimous), there remain several nominees for whom there is some Republican opposition but not enough for a successful filibuster.  These could be confirmed but inexplicably have not been moved to the Senate floor for a vote.  And, also, as noted above, there are plenty of vacancies that Obama has not even tried to fill.

Goodwin Liu's nomination to sit on the Ninth Circuit was approved for the third time by the Senate Judiciary Committee last week.  This "exceptionally well-qualified law professor and legal scholar who would be the only Asian-American serving as an active judge on the Ninth Circuit," has yet to receive a vote on the Senate floor and Republicans are again threatening a filibuster.  Four other nominees were also voted out of committee last week. 

It is infuriating that so little has changed since my post last December:

Courting Failure

December 27, 2010

The Democrats actually used the filibuster effectively to thwart some of George W. Bush's more extreme judicial appointments.  But then they blinked.  In 2005, Republicans threatened to employ the so-called "nuclear option," which would have changed the Senate rules to preclude filibusters for judicial nominees.  Seven Democrats joined seven Republicans to form the "Gang of Fourteen," and signed an agreement in which the Republicans in the gang would not vote for the nuclear option and the Democrats would not filibuster except in "extraordinary circumstances."  In practical terms, this meant that Bush was able appoint the conservatives he wanted to the bench and the Democratic minority, without the seven members of the gang, could not stop him.  Thus, five nominees who had originally been filibustered, and several other conservatives, became federal judges, and, perhaps most significantly, Samuel Alito's nomination to the Supreme Court was permitted an up-or-down vote.  He was confirmed by a vote of 58-42, with enough Senators voting against him to have successfully filibustered and prevented a vote on his confirmation.

Which brings us to the current term, in which Republicans, in stark contrast to Democrats during the Bush Administration, have effectively stalled votes and used the threat of filibuster to thwart a record number of nominations.  Notably, Obama's nominees are not mirror images of Bush's right wing picks.  Almost all who have been denied a vote were approved unanimously or nearly unanimously by the Judiciary Committee.  As I previously wrote, Vacant and Lame, Obama and the Democrats have been far too passive in pushing for votes on these judges, most of whom were not controversial, so that as of a week ago there were 38 judges awaiting confirmation.


Now, in the waning days of the session, the Democrats cut another deal that rewards Republican obstructionism.  Republicans have graciously agreed to confirm 19 non-controversial nominees and in exchange Democrats will allow four who Republicans deem are too liberal to lapse.  The others will presumably be renominated next term without any assurance that Republicans, with more Senators, will be any less recalcitrant.

What is most troubling is that the four nominees who the Democrats have agreed to jettison without a fight are hardly radical, and would have been excellent additions to the federal bench.  Goodwin Liu is a particularly bitter loss.  He was nominated to the 9th Circuit Court of Appeals, and is highly regarded in the legal community.  The Times, in a recent editorial, argued that Liu, is an "exceptionally well-qualified law professor and legal scholar who would be the only Asian-American serving as an active judge on the Ninth Circuit," and that "his potential to fill a future Supreme Court vacancy seems to be the main thing fueling Republican opposition to his nomination."

Ed Chen, now a federal magistrate, was nominated to be a district judge in San Francisco.  Opposition to Chen stems from the fact that he was an ACLU attorney before becoming a magistrate, where his work included fighting discrimination against Asian Americans.  The other two district court nominees who were defeated are former Wisconsin Supreme Court Justice Louis Butler of Wisconsin and Jack McConnell of Rhode Island.  McConnell, was opposed by the U.S. Chamber of Commerce for his willingness to represent victims of lead paint poisoning.  Butler was deemed an inappropriate choice because of his rulings that ended compensation limits for medical malpractice victims and allowed poison victims to sue all lead paint manufacturers if they didn’t know which one made them sick.  Butler's decisions so disturbed business interests that they spent $1 million to prevent his reelection to the state supreme court.

As put by Marge Baker of People For the American Way: "It's deeply disappointing that so many qualified nominees will be refused a vote."  As most of those confirmed were approved by the Judiciary Committee unanimously, "winning approval for these19 nominees in the full Senate is a consolation prize at best, especially given the absence of any significant opposition to most of those confirmed."  Furthermore, by capitulating on Butler, McConnell, Liu and Chen, the Democrats "let Republicans block qualified nominees without even putting their opposition on the record."

With a large majority in the Senate, the Democrats allowed Republicans to stymie their tepid efforts to confirm Obama's judicial nominations.  Compounding this failure was President Obama's inexplicable failure to push his worthy, and mostly non-controversial nominees.  Now, in the last days of the lame duck session the Democrats feel compelled to cut a deal in order to fill at least some vacancies on the federal bench.  As Baker contends, "in the next Congress, the White House and Senate leadership have to make judicial nominations a far greater priority and prevent this kind of backlog from building up again. That means calling up nominees and taking cloture votes early and often."

[Related posts:  Active Engagement, Vacant and Lame]