Category Archives: Obama appointments to court held up in Congress

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to fill these positions but his appointments have been held up by multiple filibusters in the Senate and nominees have withdrawn because the process has proven to be too lengthy and difficult.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.