Federal Courts and Nominations

Progressives discuss future of judiciary

By Denise M. Champagne


Getting judicial nominees moving toward confirmation is not just important to fill vacancies and turn the wheels of justice.


In fact, the courts had a significant role in shaping the recent election, according to Caroline Frederickson, president of the American Constitution Society, which Thursday hosted a forum on “Why Courts Matter: What the 2012 Election Means for 2013 and Beyond. ”


The panel discussion on the future of the judiciary was in conjunction with the Constitutional Accountability Center and the Center for American Progress, at the Washington, D.C., offices of the latter and broadcast live via webcast.


John D. Podesta, chair of the Center for American Progress and former White House chief of staff, opened the program, saying he felt better about the future of the judiciary in the wake of election results, but said progressive organizations should put more capital into assuring well-qualified candidates are appointed to the federal courts to protect the powerless from the powerful.


Podesta said three U.S. Supreme Court justices — Antonin Scalia, Anthony Kennedy and Ruth Bader Ginsburg — will turn 80 by 2016, when President Barack Obama’s second term in office will end. He said there is no doubt the president will make appointments to the high court, but that the Supreme Court hears about 80 cases a year, compared with 5,500 by the federal appeals courts and 300,000 by the district courts where the biggest challenge will be in filling vacancies.


Podesta said there are 82 vacancies on the district courts with at least 19 more coming in the “very near future. ”


Among the 19 pending are that of Monroe County Court Judge Frank P. Geraci Jr., who was nominated by Obama May 14 and favorably reported to the Senate July 19 by the Senate Committee on the Judiciary.


Podesta added that the last four years has seen an unprecedented level of obstruction in preventing judicial nominees from being voted on by the Senate, including highly qualified candidates approved by their own states who some Senate Republicans had supported in the past.


Podesta said there is little reason to believe that will change unless CAP and other organizations do something about it, such as pushing for filibuster reform and communicating to the rest of the country the importance of the judiciary.


Frederickson cited Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), as an example where courts  shaped the election, saying it even came into play during the Republican primary when Newt Gingrich was kept in the race with funding from Las Vegas casino magnate Sheldon Adelson.


She said also pointed to various state laws that tried to prevent people from voting, most of which were successfully challenged and struck down by courts. She added that enough voters were mobilized this time around to overcome “an inordinate amount of money spent by billionaires to try to sway the election and make it harder for Americans to vote,” but that the country will be in the same situation in the next election if it doesn’t address money in politics and having a fair court system.


“One of the things that was remarkable about this election was how much time we spent debating voter suppression efforts,” said Doug Kendall, founder and president of the Constitutional Accountability Center.


He said less covered was how important courts were in preventing the laws from going into effect in about a half dozen states, but that cases dealing with voting rights are likely to come before the Supreme Court including Shelby County, Ala. ’s challenge to Section Five of the Voting Rights Act, requiring pre-clearance before voter suppression goes into effect, and an Arizona case dealing with the imposition of voter identification rules at the registration stage.


“It just highlights, I think, how critical the courts are to everything,” Kendall said, noting progressive organizations fight enormous battles to win at the federal, state and local levels, but do not devote similar efforts to making sure there is a judiciary that respects federal laws that are in place.


Kendall said a president’s second term is typically when legacy issues are handled and that there is no more important mark a president could make than on the federal judiciary.


He said Obama’s presidency is the first “in anybody’s memory” where the number of judicial vacancies is higher at the end of his first term than when he started. He attributed that to Sen. Mitch McConnell’s “tricks” to block confirmation votes. McConnell, R-Ky., is the Senate Minority Leader who vowed to make Obama a one-term president.


After Obama was re-elected Tuesday, McConnell issued a statement congratulating him, saying the American people are giving the president a second chance to fix the problems that even he admits he failed to solve during his first four years in office.


“Now it’s time for the president to propose solutions that actually have a chance of passing the Republican-controlled House of Representatives and a closely-divided Senate, step up to the plate on the challenges of the moment, and deliver in a way that he did not in his first four years in office,” McConnell wrote.


Kendall said it is unfair to judicial nominees to spend a year waiting for confirmation, unable to represent clients in the meantime.


“Mitch McConnell has the power to say ‘I don’t care,’” Kendall said. “We have to make him care.”


He suggested every editorial board in the country that feels it is an important issue should write about it “again and again,” because senators pay more attention to their hometown papers than remarks in the national press.


The event was moderated by Andrew Blotky, director, Legal Progress, Center for American Progress, who asked what needs to be done regarding the nearly 100 vacancies on the federal bench.


Ian Millhiser, senior policy analyst for Constitutional Policy at the Center of for American Progress and justice editor for CAP Action’s ThinkProgress, said the nature of the filibuster has changed radically in the Obama administration and is now being used to block people that no one had opinions on.


Millhiser said the main problems are the requirement of 60 votes, or a super majority, to break a filibuster and the 30-hour rule in which votes cannot be taken for 30 hours after the filibuster ends.


The Democratic Party holds a majority in the Senate, but not 60 members to override a Republican filibuster. Democrats gained two seats Tuesday and will have 55 members in the new Congress.


Millhiser said even if 80 senators agree on a nomination, the minority can still force up to 30 hours of floor time on something that has already been decided. Millhiser said there are about 1,000 positions, including federal judgeships, the president has to make appointments on so factoring 30 hours for each would be more time than the Senate is in session for two presidential terms.


He said he is confident there will be some kind of filibuster reform package in the next Congress, but that things will be right back to where they have been for the last four years if the 60 votes and 30 hours are not addressed.

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