Category Archives: Federal Judges

Exposing Oz, Continued

Challenging every appointment that Obama wants to make is another way the GOP has shown its disregard for the United States Constitution. It is another way they are stripping the Constitution of its powers as a tool for government, and is further proof that they “see through” the Constitution. Parties have always lamented vacancies that occur in judgeships during the tenure of the opposite party and they may have vacillated and procrastinated in order to try to avoid making these appointments. But, eventually they fulfilled their duties and they did confirm a sitting President’s appointments to the courts, as the Constitution requires them to do unless there was a valid personality or character flaw.

Do you think Democrats were happy when President Bush got to make appointments to the Supreme Court? We weren’t. Do you think that we weren’t holding our collective breath while waiting to see if Justice Ginsberg would be able to stay on the court? We were. Despite our opinions we recognized Bush’s right to make these appointments. So when the current incarnation of the GOP digs in its heels and refuses to approve court appointments they are undermining the way we do business in our America government and thus they are hollowing out the  US Constitution.

They complain that if they confirm these appointments they will be allowing Obama and the Liberals to “stuff” the court and skew it left for the foreseeable future. Judges serve lengthy terms since they are appointed for life and this means that the way overall court opinions are rendered does tend to favor one side over the other. It is clear, even so, that the implications for withholding approval for the appointments are more harmful to America than allowing the court to lose balance in relation to the political point of view it represents. Denying confirmation because you don’t trust judges to be as fair as they can be is cynical, and denying appointments because they are made by your opponent will gut the Constitution, whose writers probably foresaw that this could happen but trusted that people would believe that judges would at least try to be above partisan politics.

Denying these confirmations, because you don’t like Obama, just looks like racism and I bet that is the way it will be described in the history books. There is even less reason to hold up the confirmation of cabinet appointments, so if the judge thing doesn’t buy the Republicans the racism rap, then blocking cabinet confirmations probably will, and this behavior is just as likely to undermine the US Constitution as is the matter of the judges. The Constitution has proven to be a strong and “living” document that, in spite of flaws has sufficed to make our government a workable and lasting construct. If we lose faith in the power of this document to stand up to our own flaws as human beings then we might as well kiss America good-bye. Recent Republican behavior is causing us to question whether the Constitution can stand up against our more venal strategies. Just because you are able to circumvent the true intent of the Constitution doesn’t mean that you should.


The following is a list of recent articles from in case you would like to do some more reading on this subject. Since each article is summarized you can get the gist of the arguments just by going through the list.

Recommended Readings

05/31/2013 – Obama Tries for Three More Judges to DC Court
In a new development, however, and in a game of six degrees of blogosphere, New York magazine is reporting that that President Obama is addressing the problem in the Circuit Court of Appeals for the District of Columbia – the federal appeals court in Washington, D.C. – and the second most important federal court, right after the U.S. Supreme Court. read full story

05/31/2013 – Grassley Says D.C. Circuit’s Not Busy: Is He Right?
The unique caseload of the D.C. Circuit also adds an extra layer of importance to Obama’s attempt to fill the court’s vacancies: Over the next several years, the court will likely be asked to rule on agency rulemaking for issues from financial regulation to health care to environmental protections — all Obama administration priorities. read full story

05/31/2013 – Reid a Reluctant ‘Nuclear’ Warrior
Will another Senate “gang” emerge to keep Majority Leader Harry Reid from the nuclear option to preclude filibusters of nominees? Maybe that’s what he’s hoping for. read full story

05/31/2013 – Fill seats on key D.C. court
Caseloads aren’t a matter of numbers alone. The D.C. Circuit handles some of the most complex cases in the federal court system and should have its full complement of judges to do so. The Senate should reject Mr. Grassley’s court-packing bill and give a fair hearing to the nominees. read full story

05/31/2013 – Not Too Shabby So Far: Obama’s Judicial Legacy
Liberals may not be happy about the rate at which Obama has filled vacancies, but they ought to give him credit for significantly increasing diversity on the federal bench. And he still has three years to go. read full story

05/30/2013 – Obama vs. GOP on Judicial Nominees
As President Obama faces off against Senate Republicans in a showdown over his abuse of recess appointments, a conflict that has gone to the Supreme Court, Obama has launched a new attack on the opposition party — using Senator Harry Reid (D-Nev., shown) as his proxy — in an effort to target what he views as Republican “obstructionism.” read full story

05/30/2013 – It Might Finally Be Time for the ‘Nuclear Option’ in the Senate
Watching Sen. Chuck Grassley this week rail against President Obama for “court packing” made me laugh out loud. read full story

05/30/2013 – Why is the GOP so obsessed with three little judges?
It’s beginning to feel a bit like 1937 in Washington this week as the White House and Senate Republicans hurl allegations of “court-packing” up and down Pennsylvania Avenue at one another. read full story

05/30/2013 – Obama: Finally Ready to Fight?
Is Barack Obama finally ready to fight? His announcement, reportedly coming this week, of three nominees to sit on the District of Columbia federal bench sure makes it look like he is. read full story

05/30/2013 – President does job. Republicans set hair on fire.
President Obama is reported to be ready to do something very important: he is expected to make nominations for the three empty seats on the D.C. Circuit Court of Appeals. read full story

05/30/2013 – Bench-Pressed: Libs Try to Muscle onto Courts
If you don’t like the court’s decisions, change the people making them! That seems to be Barack Obama’s philosophy, as he gets ready to pick one of the biggest fights of his presidency with Republicans. After simmering in the background for a few months, the issue of judicial nominations is about to boil over. read full story

05/30/2013 – Sen. Collins, GOP colleagues trying to slow government
Sen. Susan Collins is in the center of a showdown between the White House and Senate Republicans over judicial nominations. It’s taking place over the U.S. Court of Appeals for the D.C. Circuit, which has been described as the most important court that no one has heard of. read full story

05/30/2013 – The G.O.P.’s Court-Shrinking Plan
Harry Reid has vowed to crack down on Republican filibusters several times with no effect, so it’s hard not to feel dubious about his latest threat to change Senate rules if Republicans continue to block President Obama’s nominations. read full story

05/30/2013 – This is court-packing in the GOP’s dreams only
When it comes to judicial vacancies, and especially the powerful D.C. Circuit, “pack” is the verb of choice, with its sinister Rooseveltian overtones of a president maneuvering to game the system. Don’t fall for it. read full story

05/29/2013 – Will Republicans filibuster Obama’s three judicial nominations?
In an effort to shape the nation’s judiciary system–and put Senate Republican obstructionism in the spotlight–President Obama plans to simultaneously nominate three judges to the second most powerful court in the country. The president’s announcement will force Republicans to decide whether they will filibuster all three nominations. read full story

05/29/13 – Ed Whelan’s Misplaced Blame for Judicial Emergencies without Nominees
A column today includes a series of misleading statements about the President’s record on filling vacancies where the caseload backlog is most severe. read full story

05/29/13 – Is Obama ‘Stacking the Courts’ With Liberal Judges?
Obama is planning a big push to get three judges nominated to America’s most important federal court, and Republicans do not like it. read full story

05/29/13 – Shorting the D.C. Circuit
Even if his three simultaneous judicial nominees are blocked, it’s a win-win situation for the president that just might mean the beginning of the end for the filibuster. read full story

05/29/13 – That Term Most Definitely Does not Mean what you Think it Means
It is amazingly cynical, not to mention blatantly dishonest, to associate filling existing vacancies with a practice of trying to add new seats to the bench, especially since “court packing” has a decidedly negative connotation in American politics. read full story

05/29/13 – Putting the D.C. Circuit Vacancies in Context – Part 2
The White House’s reported sudden rush to fill three D.C. Circuit vacancies, even as it neglects judicial-emergency vacancies on overworked courts, needs also to be considered in the context of President Obama’s manifest lack of respect for, and lack of seriousness about, the D.C. Circuit. read full story

05/29/2013 – A Legacy Litigated
President Obama is finally getting serious about the U.S. Court of Appeals for the District of Columbia Circuit. The federal appeals court is second only to the Supreme Court in importance, because it referees fights about the power of federal agencies and the rulings they make (and also because it’s a traditional feeder to the high court). read full story

05/29/13 – Putting the D.C. Circuit Vacancies in Context – Part 1
There is no neutral principle that justifies the Obama administration’s sudden rush on the D.C. Circuit. read full story

05/29/2013 – A Time for Harry Reid’s Backbone
A president’s court picks shouldn’t require 60 Senate votes. The Constitution is quite specific about when “super-majorities” are needed, and makes no mention of super-majorities for court appointments. read full story

05/29/13 – Republican Court Unpacking Plan Takes Judicial Manipulation to a New Level
Republicans in the Senate have made no secret of their efforts to block the President’s constitutional responsibility to appoint federal judges. read full story

05/28/13 – Republicans Looking Sheepish On Obama Court Nominees
They’re hoping they can obstruct quietly, without drawing too much attention. read full story

05/28/13 – Democrats prepare for nuclear war
Harry Reid is threatening to revisit rules reform by simple majority – i.e., the nuclear option — and the case he is making privately is that if Republicans continue at current levels of obstructionism, he is prepared to move in July to end the filibuster on judicial and executive branch nominations. read full story

05/28/13 – Judges, filibusters and obstruction
It appears almost certain that President Obama will soon offer three nominees to fill the three vacancies on the D.C. Circuit Court of Appeals. Good. Excellent. read full story

05/28/13 – Judicial Blitz?
Republican senators mulling a major filibuster action against Obama’s nominees have to deal with the incendiary rhetoric some of them deployed back in 2005, when they toyed with using the “nuclear option” to overcome Democratic filibuster threats against George W. Bush’s judicial nominees. read full story

05/28/13 – Obama to Senate: Obstruct This
Obama is calculating that, by making three selections at once, Republicans in the Senate won’t be able to use the same pretense they used against Halligan — picking out one objectionable ruling and calling it an extraordinary circumstance. read full story

05/28/13 – Why the New White House Push for Judicial Nominees Won’t Work
The confirmation system is so broken that it takes a year for qualified nominees to be approved. That’s leaving dozens of courts woefully understaffed. read full story

05/28/13 – The coming showdown on judicial nominations
It appears that President Obama will finally nominate judges for the three remaining vacancies on the D.C. Circuit Court of Appeals. read full story

05/28/13 – How An Absurd Senate Rule Kept A Powerful Judgeship Open For 1000 Days And Counting
This weekend, former federal appellate Judge Stanley Birth celebrated his 1000th day of retirement from the federal bench, and the seat he once occupied also celebrated its 1000th day of being vacant. read full story

05/27/13 – How Republicans have a hidden advantage on the nation’s second most important court
The Supreme Court rightly attracts the most attention. But the filibuster is reshaping American justice, and the federal government’s ability to institute and enforce regulations, throughout the federal court system. read full story

05/27/13 – Filibuster summer is coming our way
In recent years, the DC Court of Appeals has been busily at work trying to undermine as much of President Obama’s agenda as they can get their eager little right-wing hands on. Republicans, needless to say, think this is a fine thing, which means they’re none too eager to let Obama fill the court’s open vacancies with judges who might not be quite such committed Federalist Society members. read full story

05/27/13 – Sen. Chuck Grassley: White House sheds crocodile tears
The Senate has confirmed a near record number of judicial nominees during President Obama’s time in office. Yet you’d never know it by the crocodile tears coming from this administration. read full story

05/27/13 – Senate GOP obstructionism reaches new heights
Just when you think the Senate has become hopelessly dysfunctional, senators do something to remind you they’re capable of so much more. read full story

05/27/13 – Injustice in the Senate
The federal courts are sick. The symptoms have been worsening for some time, resulting in too few judges with too many cases and slowing justice to a glacial pace. And the diagnosis is one we’ve all heard before: Partisan politics. read full story

05/26/13 – The Most Dangerous Court in America
The D.C. Circuit is the training ground for the Supreme Court and the place where much of the nation’s regulatory framework is decided. In its current form, it is one the most dangerous courts in the land. read full story

05/24/2013 – What ‘packing the court’ means
Chuck Grassley sees judicial nominations as some kind of underhanded Democratic scheme. The rest of us should consider it basic American governance. read full story

There is a lot more to this timeline:



Obstructing Justice


Some important positions in Federal courts are not being filled. Obama has nominated reputable people to fill these positions but his appointments have been held up by multiple filibusters in the Senate and nominees have withdrawn because the process has proven to be too lengthy and difficult. The media has been talking about Obama’s failure to fill vacant seats in the federal courts but I think we can see that Obama is not actually at fault here. He has been eviscerated in the press for appointing new people to the National Labor Relations Board as recess appointments, because he made these appointments while Congress was gone, but not technically in a recess. The Republicans made sure that they kept a minimum presence so that a recess could not be declared. And we can be pretty sure that if we are hearing now about “obstructionism” on this issue of Federal Court appointments that there is a Republican or two somewhere in the woodpile, because this is the Republican strategy for marginalizing Obama and the Democrats. Here’s a very straightforward article on the subject:

Radical Republicans, Not the President, Have Created the Judicial Vacancy Crisis

April 4, 2013

by Jeremy Leaming

The inability of President Obama to fill vacant seats on one of the nation’s most powerful courts, the U.S. Court of Appeals for the D.C. Circuit, has belatedly caught the attention of a few beltway reporters. And unsurprisingly several of those longtime reporters have framed the story in a typical, albeit lazy, fashion – it’s both the Republicans and the administration’s fault. It’s a story they are trained to write. Place blame on both parties, question whether there’s really anything new here and then walk away.

So one must look to writers like Andrew Sullivan, Thomas Mann and Norman Ornstein or the Constitutional Accountability Center’s Judith Schaefferfor an accurate picture of the debacle that is the judicial nominations process.

The current fight over the judiciary has very little to do with the pace by which the administration has nominated potential judges. It has everything to do with a Republican Party that has grown increasingly radical. It’s a Party that is oblivious to the last two presidential elections, won fairly handily by a Democrat, and beholden to interests that need a federal bench that tilts heavily rightward – to protect corporate interests. So Republican senators, led by Minority Leader Mitch McConnell (R-Ky), have not taken their constitutional duty to provide advice and consent seriously and abused the filibuster to greatly slow the pace of judicial confirmations. This has led to vacancies across the country hovering above 80 for far too long…

The Republican obstructionists’ actions have likely had the most adverse effect on the D.C. Circuit, where they recently filibustered one of Obama’s selections for the D.C. Circuit, which hears some of the most important constitutional matters of any of the federal appeals circuits. It hears, for instance, challenges to new regulations aimed at enforcing the Clean Air and Clean Water federal laws. It is also a Court that tilts rightward and has shown great hostility to regulations aimed at protecting our environment – good for corporate interests, harmful to the health of many Americans.

Caitlin Halligan, the general counsel for the Manhattan district attorney’s office, blocked by Republicans on more than one occasion, withdrew her nomination not long after the second filibuster in early March. Grasping at anything to keep the vacancies on the D.C. Circuit, the Republican obstructionists groused that they didn’t care for how Halligan handled her job in New York, focusing on a case the state lodged against gun manufacturers. Halligan had the ABA’s highest rating and staunch support in the legal community. Schaeffer calls the filibuster of Halligan “another breathtaking example of rank partisanship by Senate Republicans, who have engaged in the unprecedented obstruction of President Obama’s judicial nominees since he took office, creating a vacancy crisis on the federal courts.”

Now the obstructions are honing in on another of the president’s nominees to the D.C. Circuit, the Principal Deputy Solicitor General Sri Srinivasan. Indeed the obstructionists have already engaged in slow-walking the nomination. When Srinivasan gets a hearing before the Senate Judiciary Committee next week on April 10, it will have been more than 300 days since Obama nominated him. The Committee’s Ranking Member Sen. Chuck Grassley (R-Iowa) has been largely responsible for delaying consideration of Srinivasan’s nomination. Like Halligan the obstructionists are putting forth wobbly reasons for the delays. (Often the obstructions give no reason at all for delaying consideration of judicial nominations.)

Srinivasan, like Halligan, has the ABA’s highest ranking for serving on the federal bench. He also has the staunch support of former Solicitor Generals, such as Paul Clement, Ted Olson and Kenneth Starr. In a letter to the Senate Judiciary Committee’s leaders they laud Srinivasan, saying he “has a first-rate intellect, an open-minded approach to the law, a strong work ethic, and an unimpeachable character.” Srinivasan, born in Chandigarh, India and immigrated to the U.S. where he grew up in Lawrence, Kansas, would if confirmed be the first South Asian American to serve on the federal appellate bench.

And here’s another article:


Court nominees stalled for six years in D.C.

2013-04-05T12:02:00Z2013-04-05T16:26:04ZCourt nominees stalled for six years in D.C.SUSAN ESTRICHThe Quad-City Times

April 05, 2013 12:02 pmSUSAN ESTRICH

The United States Court of Appeals for the District of Columbia Circuit is widely considered the second most powerful court in the land because, among other things, it is the court that reviews decisions of key government agencies, from the Federal Trade Commission to the Federal Communications Commission. It is the court where key challenges to federal law are often brought and where knotty issues of executive privilege and constitutional law are decided. And among judges, it has long been the “feeder” court to the United States Supreme Court.

And that is certainly the reason it is so empty.

Of the 11 seats on the court, four are empty.

No nominee has been confirmed since 2006.

Highly qualified nominees — most recently, former federal prosecutor Caitlin Halligan — are regularly rejected. Halligan’s nomination languished for two and a half years before a Republican filibuster led the president to withdraw her name in late March.

All of this makes the letter sent last week by six former solicitors general of the United States, including three Republican superstars, all the more important. In the letter, Paul Clement (who argued against Obamacare and gay marriage), Ted Olson (the nation’s top appellate lawyer under George W. Bush) and Ken Starr (who led the investigation of President Clinton) joined with their Democratic colleagues to support the “swift confirmation” of Sri Srinivasan, currently the principal U.S. deputy solicitor general, to fill the seat on the D.C. circuit vacated in 2005 by now Chief Justice John Roberts.

According to the bipartisan group, Srinivasan has a “first-rate intellect, an open-minded approach to the law, a strong work ethic, and an unimpeachable character,” is “one of the best appellate lawyers in the country” and is “extremely well prepared to take on the intellectual rigors of serving as a judge on the D.C. circuit.”

But that, for the past seven years at least, has not been enough to get anyone confirmed.

There was a time, not so long ago, when the confirmations of nominees such as Srinivasan were almost routine votes devoid of politics. No longer. The more important the court the more politicized the process. Both sides can blame the other for this descent into base politics, but the results are not subject to debate.

Highly qualified lawyers resist even having their names put up in the first place. For those in private practice, the big deterrent is not necessarily the 90-plus percent cut in pay (judges on the D.C. circuit make less than young associates at big firms like mine), but the prospect of years of purgatory while awaiting confirmation. How do you tell your clients and partners that you are about to be hung out to dry, with no certain result, and that you may or may not be there to handle their cases?


And one last article to add to these three all published just last week:

Obama Pushes Republicans to Drop Hurdles to Judicial Nominations

Mike Dorning, ©2013 Bloomberg News

Published 10:25 am, Wednesday, April 3, 2013

 (Page 1 of 3)

April 3 (Bloomberg) — President Barack Obama is pressing Republicans to stop obstructing federal judicial nominees, protesting the delays in private conversations with senators and in public declarations by administration officials.

The White House is now focusing on the nomination of Sri Srinivasan for the U.S. Court of Appeals for the District of Columbia, considered the nation’s second-most influential court because it often handles major environmental, labor and national security cases through its jurisdiction over federal rulemaking. Srinivasan’s confirmation hearing is scheduled for April 10.

At luncheon meetings with Senate and House Republicans and at a dinner with a dozen senators last month, Obama pushed against a partisan strategy to block potential future candidates for the Supreme Court earlier in their careers when they are nominated for lower courts, said an administration official, who requested anonymity.

Obama spokesman Jay Carney went to the White House podium this week to complain about “the uniqueness” and “arbitrariness” of the delays Obama’s nominees have faced.

The latest example was Caitlin Halligan, a former New York state solicitor general whose nomination for an appellate judgeship was withdrawn last month amid Republican opposition. She joins Goodwin Liu, an appellate court candidate considered a potential pick by Obama to be the Supreme Court’s first Asian- American justice, who was blocked in the Senate in 2011.

Democrats have used the tactic, too, stopping Miguel Estrada, a George W. Bush appeals court nominee, whom opponents believed Bush might later make the first Hispanic justice.


Reciprocal Filibustering


“You are taking away talent at a much earlier stage,” said Julian Zelizer, a Princeton University history professor, calling it “a reciprocal use of filibustering against the bench of the other party.”

The delays go beyond the judiciary, with similar skirmishes dragging out executive-branch appointments.

Chuck Hagel became the first defense secretary nominee ever filibustered, though backers got enough support to pass the 60- vote threshold needed to overcome the hurdle. CIA Director John Brennan was also the target of a filibuster. Jacob Lew, now Treasury secretary, was flooded with 444 written questions, mostly from Republicans, more than the previous seven Treasury nominees combined.

Still, the judicial arena may offer the starkest illustration of obstructionism: The average wait for confirmation of circuit and district court nominees in Obama’s first term stretched to 227 days, from 176 days in Bush’s first term and 98 days in President Bill Clinton’s first term, according to an analysis by Russell Wheeler, a fellow at the Brookings Institution in Washington.


487 Days


The Senate waited 487 days after Richard Taranto’s nomination before confirming him on March 11 as an appellate judge, though his 91-0 vote signaled no opposition. Obama’s previous nominee for that post, lawyer Edward Dumont, withdrew his name from consideration after waiting more than 18 months.

No nominee has been confirmed since 2006 for the D.C. Circuit, a feeder for the Supreme Court; four of the top court’s nine current justices, including Chief Justice John Roberts, previously sat on the D.C. Circuit.

Halligan had been nominated for one of four vacancies among 11 seats on that circuit court. The White House moved to smooth the way for Srinivasan’s nomination to the same court by releasing a letter of support this week from former officials in the solicitor general’s office including six Republicans, among them Kenneth Starr, who investigated Clinton, and Ted Olson, who was solicitor general under Bush.

Srinivasan, who was born in India, would be the first South Asian federal appeals court judge if confirmed. He was nominated in June 2012.



I’m just not sure why we aren’t all making a little noise about this, writing our Congress people and trying to stop the senseless obstruction so that the nation’s business can be taken care of. I still contend that this behavior on the part of the Republicans has gone on so long and has been so intense that it amounts to a sort of bloodless coup which allows the people to pick a President but then does not allow the President duly chosen by the people to actually govern. Doesn’t this make anyone else angry? Doesn’t anyone have some ideas for dealing with this? I don’t hear a whole lot of chatter. Why not? Best advice: elect Democrats to Congress in 2014.


This is the view from the cheap seats.