Fair Courts E-lert: Confirmation Delays and Opposition in the Senate

March 19, 2013

The Sequester Continues to Affect the Judiciary, Justices Breyer and Kennedy Weigh In
Andrew Cohen writes about the impact of the sequester on the federal judiciary for The Atlantic: “At the core of the problem is the fact that the judicial branch is financially beholden to the other two branches of government. This separation of powers was designed by our nation's founders to limit the judiciary’s independence, and it has, and nowhere is this dynamic more visible than when a chief justice like John Roberts has to grovel for funding or otherwise justify the judiciary’s minuscule portion of the budget. If the sequester isn't unconstitutional per se, it is causing an unconstitutional effect upon the swift, fair and equal administration of justice.”

Justices Breyer and Kennedy also recently testified in front of a congressional hearing on the topic of budget cuts; according to Thompson Reuters, “Although the justices were testifying before a subcommittee of the House Appropriations Committee only about the high court’s budget, which is handled separately to that of the judiciary as a whole, many of the questions from lawmakers concerned the wider budget issue.” The Blog of Legal Times covered the hearing, writing “But Kennedy and Breyer said budget cuts could have a serious impact on the lower federal courts and in particular federal defender programs that could endanger the rule of law by closing courts and delaying trials. ‘Historically, the first things that are cut are pretrial sentencing and probation officers ... and public defenders,’ Kennedy said. ‘This is serious business.’ Cutting public defenders, Breyer said, would end up increasing costs to the taxpayer because, simply put, ‘you will get the wrong person convicted.’ That will lead to litigation over innocence or the competence of the lawyer, said Breyer, producing costs that would exceed the expense of giving the defendant ‘a good lawyer in the first place.’” A post on the U.S. Courts website highlights the impact of the budget cuts, including risks to public safety, delays in cases, a reduction in court security, lower staffing for public defenders, and “deep cuts” for information technology programs.
Sources: Andrew Cohen, How the Sequester Threatens the U.S. Legal System, The Atlantic, March 11, 2013; Lawrence Hurley, Justices Raise Concerns About Budget Cuts To Judiciary, Thompson Reuters, March 14, 2013; Tony Mauro, Justices Testify on Budget, Cameras, Minority Clerks, The Blog of Legal Times, March 14, 2013; United States Courts: News, Federal Judiciary Braces for Broad Impact of Budget Sequestration, March 12, 2013.


Confirmation Delays and Opposition in the Senate
Jeffery Toobin wrote a piece for the New Yorker highlighting the recent confirmation battle over Caitlin Halligan’s nomination to the Court of Appeals for the D.C. Circuit as well as the overall lag in confirmations that has continued in the new congressional term. He writes, “This was the second time that Halligan received majority support, but, because she never passed the threshold of sixty, her nomination now appears doomed. And so, in the fifth year of his Presidency, Obama has failed to place even a single judge on the D.C. Circuit, considered the second most important court in the nation, as it deals with cases of national importance. (Its judges—like John Roberts, Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg—also often wind up on the Supreme Court.) The D.C. Circuit now has four vacancies out of eleven seats.”

A nominee from Nevada also recently asked President Obama to withdraw her nomination after she waited a year for consideration by the Senate, as one of her home state senators failed to return his blue slip to allow the nomination to go forward. The senator in question, Senator Dean Heller, was quoted in Roll Call as saying, “I respect Judge Cadish and believe she has had many great accomplishments in her career… However, I cannot support her nomination as a federal judge. I believe an individual citizen has the constitutional right to keep and bear arms, and cannot in good conscience support a nominee whose commitment to the Constitution’s Second Amendment is in doubt.”
Sources: Jeffrey Toobin, For Obama’s Judges, It’s Already Late, New Yorker, March 12, 2013; Humberto Sanchez, Heller Bests Reid in Judicial Nomination Fight, Roll Call, March 8, 2013.


New Mexico Passes Public Financing Fix
The New Mexico legislature has passed, and sent to the governor, a bill that updates the state’s public financing program for judicial elections and introduces small donor matching. According to a post by Public Campaign, “The legislation is in response to the Supreme Court’s 2011 decision in Arizona Free Enterprise v. Bennett, in which the Court threw out so-called ‘trigger funds’ that were an integral part of ‘Clean Elections’ systems like those in New Mexico, Arizona, Maine, North Carolina and Connecticut… The Voter Action Act replaces the trigger funds with a constitutional small donor matching system. After candidates for the Public Regulation Commission and judicial races qualify for public financing and receive their initial grant, they would, under this new bill, be able to continue raising small donations that would be matched on a 4-1 basis, similar to what has been proposed in the Fair Elections Now Act in Congress.” In a statement by Common Cause, a proponent of the bill, the Executive Director of the New Mexico Chapter, Viki Harrison, said, “We are pleased the bill passed unanimously through the House Voters and Elections Committee (10-0) and House Judiciary Committee (11-0) and with strong bipartisan support today…. We are grateful to Sen. Peter Wirth for his leadership on this issue and we are hopeful that Gov. Martinez will sign this into law.”
Sources: Public Campaign, Good News: New Mexico Legislature Upgrades Its Public Financing System, March 14, 2013; Press Release, New Mexico Passes First Public Financing Fix With Bipartisan Support, Common Cause, March 13, 2013.


Kansas Legislature Passes Bill Altering Merit Selection
Kansas’s legislature passed a bill that would “giv[e] the Kansas governor and lawmakers more power in appointing Court of Appeals judges,” according to the Associated Press. The bill is awaiting a signature by the governor. The new bill would “give the governor the authority to appoint Court of Appeals judges, subject to Senate confirmation. It abolishes the existing attorney-led commission that screens applicants and nominates three finalists. The governor makes the appointment, with no role for lawmakers.” According to the AP article, a similar measure is being considered for the Supreme Court but “would require amending the state constitution.” An editorial in the Lawrence Journal-World criticized the bill: “Critics of the current system were focused on the fact that a majority of the nominating committee were attorneys elected by fellow members of the Kansas Bar. The system, they said, was too dominated by attorneys, too undemocratic. However, rather than adjust the membership of the nominating committee to address the specific problem, legislators have chosen to throw that system out and replace it with the appointment-confirmation system that injects new political influence into the system and could cause delays in filling vacant judgeships.” The editorial also questioned efforts to expand the new system to the Kansas Supreme Court, saying: “The Appeals Court change apparently is a done deal. Because the selection of appeals judges is set out in statute, legislators can change it without a public vote. However, Kansans may have an opportunity to weigh in on a measure that would apply the same appointment system to the Kansas Supreme Court. Changing the Supreme Court appointment system would require a constitutional amendment, which already has passed the Kansas Senate. If it is approved by two-thirds of the Kansas House, it will go to the voters. Interestingly, the Senate bill sets the public vote on the amendment for August 2014, during a primary election that likely will draw only a small voter turnout. If the opponents of the current court selection system are looking to be more ‘democratic,’ why wouldn’t they put the measure on a general election ballot when it would draw as many voters as possible?”
Sources: Kansas Senate Approves Bill on Judicial Selection, Associated Press via KWCH, March 13, 2013; Editorial,More Democratic?, Lawrence Journal-World, March 14, 2013.