Fair Courts E-lert: Judicial Nominations and Confirmations in Obama’s First Term

December 19, 2012

NY Times Editorial: Judges Needed for Federal Courts
The New York Times published an editorial stating, “There has been a severe breakdown in the process for appointing federal judges. At the start of the Reagan years, it took, on average, a month for candidates for appellate and trial courts to go from nomination to confirmation. In the first Obama term, it has taken, on average, more than seven months.” The editorial cites the filibuster as one of the main reasons for delay, “A significant reason for the slowdown has been the partisan opposition of Republicans to appeals court and even to trial court nominations, even though almost none of the nominees have backgrounds that raise ideological issues. The Republicans have time and again used the filibuster, the threat of filibuster, holds on nominations and other tactics to block confirmations.” The editorial also calls on the President to keep diversity in mind, “Mr. Obama and the Senate should also look to broaden the diversity of the judges they appoint. In his first term, Mr. Obama commendably named a higher share of women (44 percent) and a higher share of minorities (37 percent) than any president before him. Most of the appointees were already judges, prosecutors or private lawyers, with few public defenders or public-interest lawyers from outside government. Expanding the breadth of experience would help ensure that federal courts have jurists who have some real-life understanding of the myriad issues that come before them.” The conclusion urges the president to make the nomination and confirmation of judges a high priority. “The Constitution requires the president, with the Senate’s advice and consent, to fill federal judgeships. That duty has been terribly neglected and needs to be an absolute priority in the coming year.”
Source: Editorial, Judges Needed for Federal Courts, New York Times, December 12, 2012.


Brookings Report: Judicial Nominations and Confirmations in Obama’s First Term
Russell Wheeler analyzed data from the last few presidential terms on rates of federal judicial nomination and confirmation to see if President Obama’s term has been exceptional. He states three conclusions: “His first term will end with more vacancies than when it started because of, comparatively, fewer nominees, later submission dates, and a weaker district nominee confirmation rate… The contentiousness that affected President William Clinton’s and President George W. Bush’s efforts to appoint judges to the courts of appeals did not appear to worsen during Obama’s first term, but battles have heated up over district nominations.… The elapsed times for making district court nominations and confirming them have grown to eye-popping levels.” Wheeler also has some predictions for what will happen during President Obama’s second term: “The Senate will not confirm any circuit nominees nominated in 2016. Twenty-five of the 38 Republican-appointed judges now in active service who are or will be senior status-eligible by 2015 will take senior status by then (based on the mid-November two-thirds ratio of judges in senior status to all those eligible for that designation (109 of 166)). Adding these anticipated vacancies to those already in place and announced means that Obama will have a chance to fill 37 Republican appointee created vacancies (12 in place or announced plus 25 anticipated); Obama will nominate candidates for all pre-2016 vacancies (based on the likelihood that the White House will work hard to overcome its first term’s more lethargic nomination effort). The 71 percent circuit confirmation rate of the first term will decline to about 65 percent (Clinton’s first-term rate of 71 percent fell to 63 percent in his second term. Bush’s declined from 67 percent to 60 percent.).”
Source: Russell Wheeler, Judicial Nominations and Confirmations in Obama’s First Term, Brookings Institution, December 13, 2012.

Center for Amercan Progress: “Public Financing of Judicial Races Can Give Small Donors a Decisive Role”
The Center for American Progress released a report arguing in favor of small donor public financing as a way to “help mitigate the influence of corporate campaign cash in judicial elections.” Billy Corriher, the author, argues, “While the traditional form of ‘matching funds’ is now unconstitutional, some jurisdictions have implemented ‘small-donor matching’ systems in which public funds are used to ‘multiply’ the impact of small donors. If a state offers five-to-one matching funds for small donations, for example, a $200 contribution becomes a $1,000 contribution. These systems have not yet been implemented for judicial campaigns.” Corriher explains, “North Carolina, for example, has a public financing system in which appellate court candidates must raise roughly between $40,000 and $80,000 in small contributions to qualify for public funds. Participating candidates receive more than $200,000 in public financing, but they can only spend that sum and the qualifying contributions on their campaigns…  States should step in to curb the growing influence of campaign cash on judges by implementing robust public financing programs. Before the 2012 election in North Carolina saw a torrent of independent spending, the state’s public financing system was a model. Without traditional matching funds, however, the publicly financed challenger could not contend with the millions in independent spending on behalf of the incumbent justice.” The report concludes, “Public financing systems based on small-donor matching would magnify the impact of small donations, making the pool of campaign contributors broader and more representative of a state’s population. Rather than being responsive to corporations and lawyers that have tons of money to donate, judges would be beholden to ordinary citizens making small donations. This would be an important step toward a justice system that works for all citizens, not just those with money to spend influencing the law.”
Source: Billy Corriher, Public Financing of Judicial Races Can Give Small Donors a Decisive Role, Center for American Progress, December 12, 2012.


New Poll: “Most Popular Filibuster Reform Is Limiting Obstruction of Judicial Nominees”
According to Think Progress, Public Policy Polling conducted a poll that found “overwhelming support for filibuster reform generally, and similarly strong support for specific reforms currently under discussion.” According to one blog post, “The most popular reform tested by the poll, however, is ensuring that ‘people who have been nominated to serve as judges have an up or down vote on their nominations in a more timely manner.’ 75 percent of respondents supported this proposal. Only 17 percent oppose it.” There has been frustration over the stall of confirmations in the Senate, as covered in previous e-lerts. Now, there is some movement as the Senate has confirmed ten nominees in the lame duck session, with the two confirmations of John Dowdell for Oklahoma’s Northern District and Jesus Bernal to California’s Central District, then two confirmations for New York Lorna Schofield in the Southern District and Frank Geraci Jr. in the Western District, and finally Thomas Durkin for Illinois’s Northern District and Fernando Olguin also for California’s Central District.
Sources: Ian Millhiser, Poll: Most Popular Filibuster Reform Is Limiting Obstruction Of Judicial Nominees, Think Progress, December 14, 2012; Randy Krehbiel, Senate Confirms Tulsa Attorney's Appointment as Federal Judge, Tulsa World, December 11, 2012; Brian Tumulty and Gary Craig, Senate Confirms Frank Geraci Jr. To Serve As Federal Judge, Democrat and Chronicle, December 13, 2012; Bob Goldsborough, Business Litigation Attorney Confirmed as Federal Judge, Chicago Tribune, December 17, 2012; Staff Writer, Senate Confirms Magistrate Judge Fernando Olguin to District Judgeship, Metropolitan News-Enterprise, December 18, 2012.


National Law Journal: Court Finds Ohio Campaign Restriction Constitutional
According to an article in the National Law Journal, “An Ohio ethics rule that prohibits state judicial candidates from personally soliciting campaign contributions does not violate the First Amendment, a federal judge determined on December 10.” The rule, which does not apply to solicitations in writing or to groups of more than 20 people, was upheld except with regard to a judge’s solicitations from immediate family members. According to the judge, U.S. District Judge Susan Dlott,  there was compelling state interest in “preserving the appearance and reality of an impartial judiciary and protecting donors from coercion.” According to the Journal article, the judge felt the law was narrowly tailored to that purpose. However, the judge found that the restrictions on family members had “diminished value” and she wrote, “That a judge must recuse himself or herself from matters involving immediate family members is recognized in other rules, such as the one that permits a judge to accept gifts, loans, and other things of value from close friends and family members because their appearance or interest in a proceeding before the judge would in any event require the judge's disqualification.”
Source: Leigh Jones, Court Finds Ohio Judicial Campaign Restriction Constitutional, National Law Journal, December 12, 2012.


Boston Globe Op-ed: “Judging the Judges in Mass.: Protect Independence”
The Boston Globe featured an op-ed responding to a District Attorney, Dan Conley, who attacked the confidential proceedings of the Commission on Judicial Conduct after they disagreed with a claim of anti-prosecution bias he brought against Boston Municipal Court Judge Raymond Dougan. According to the op-ed, “Transparency, Conley insisted, had been undermined because the judicial disciplinary process was confidential. Worse, he said, accountability had been compromised...” However, the writers disagree with the DA’s tactics, and argue, “Conley’s remarks were irresponsible. It is one thing for the DA to challenge a judge based on nine years of decisions he did not like, which led to subpoenas of the judge’s diaries, many years after the fact. It is quite another to excoriate the Commission on Judicial Conduct, and by implication, the Supreme Judicial Court.” The writers argue, “Conley monitored a judge just because he disagreed with his decisions and with the way he exercised his discretion, not because there was any evidence of judicial misconduct… Make no mistake about it. Judicial independence is fragile, easily undermined by baseless accusations and the intemperate remarks of a public official.”
Source: Nancy Gertner and Richard A. Gargiulo, Judging the Judges in Mass.: Protect Independence, Boston Globe, December 15, 2012.