Fair Courts E-lert: Coverage Continues on Federal Judicial Nomination and Confirmation

December 4, 2012

Adam Liptak in NY Times “‘Politicians in Robes’? Not Exactly, But . . .”
The New York Times features an article by Adam Liptak discussing the relevance of judges’ partisan affiliations to court decisions. The article states: “Many judges hate it when news reports note this sort of thing, saying it undermines public trust in the courts by painting them as political actors rather than how they like to see themselves — as disinterested guardians of neutral legal principles. But there is a lot of evidence that the party of the president who appointed a judge is a significant guide to how that judge will vote on politically charged issues like affirmative action.” Liptak first points to Lyle Dennison, of Scotusblog, who does not refer to party affiliation unless “it is clearly demonstrated that the political source of a judge’s selection had a direct bearing upon how that judge voted — admittedly, a very difficult thing to prove. Otherwise, the use of such references invites the reader to draw such a conclusion about partisan influence, without proof.” Liptak cites a forthcoming book that concludes “federal judges are not just politicians in robes, though that is part of what they are,” and goes on to say, “Justices appointed by Republican presidents vote more conservatively on average than justices appointed by Democratic ones, with the difference being most pronounced in civil rights cases.” Liptak adds, “That correlation has become more pronounced since the retirements of Justices John Paul Stevens and David H. Souter, who were appointed by Republican presidents but were members of the court’s liberal wing. These days, for the first time in many decades, all of the court’s more liberal members were appointed by Democrats and all of its more conservative ones by Republicans.”
Source: Adam Liptak, Politicians in Robes’? Not Exactly, But . . ., New York Times, November 26, 2012.


Coverage Continues on Federal Judicial Nomination and Confirmation

There is ongoing coverage on the direction of the federal judiciary, both within the senate and the nominations recently announced by President Obama. On Monday, the Senate began considering nominees to ease the judicial vacancy crisis, as senators loosen their opposition to approving any judicial nominees. Senator Mike Lee has said he will no longer only vote no on nominees, and Louisiana Senator David Ritter removed his block on the nomination of Shelley D. Dick, who would be the first female federal district court judge in the Middle District of Louisiana. According to USA Today, “only 75% of his nominees have been confirmed, compared with 88% for Bush and 84% for Clinton. On average, they have waited 224 days in the pipeline, up from Bush's 176 days and Clinton's 98.” On Monday night, the Senate confirmed one judge and agreed to a vote on a second judge. As reported on the Legal Times blog, “Monday's 92-1 confirmation vote for Paul Grimm to become a U.S. district judge in the District of Maryland was only the fourth judicial confirmation during a lame-duck session in more than 70 years...”

President Obama has also been criticized for the vacancies, with an article in the Huffington Post emphasizing that “There are currently 83 empty district and circuit court judge seats. That means Obama is poised to end the year with more vacancies than when he was sworn in -- there were 55 when he came in -- and with far fewer confirmed nominees than his two predecessors had by the end of their first terms. While former President Bill Clinton was at 200 and George W. Bush was at 205, Obama is at 160, according to data provided by the Senate Judiciary Committee. Thirty-three of those 83 empty seats are considered ‘judicial emergencies.’” The article blames both President Obama and the senate for the crisis, pointing to Obama’s record in nominating judges, “He hasn't put forward as many nominees as his predecessors, a fact that Senate Judiciary Committee ranking member Chuck Grassley (R-Iowa) said is fueling the crisis with judicial vacancies. By this point in their presidencies, Clinton and Bush had nominated 247 and 231 judicial nominees, respectively. Obama has only put up 215.” President Obama has been working to nominate more people to the bench since the election, keeping an eye to diversity as he does it. Since the election, he has nominated the first openly gay Latina and the first openly gay African American man.
Sources: Richard Wolf, Obama Determined to Fill Federal Judgeships, USA Today, November 28, 2012; Jennifer Bendery, Judicial Vacancies Skyrocket During President Obama's First Term, Huffington Post, December 2, 2012; Todd Ruger, During Lame Duck, Senators Confirm One Judge and Agree to Vote on Another, Blog of Legal Times, December 4, 2012; Todd Ruger, Senator Backs Away from 'No' Vote Policy on Obama Judicial Nominees, Blog of Legal Times, November 28, 2012; Jordan Blum, Vitter Removes Block on Judicial Nominee, The Advocate, November 29, 2012; Chris Johnson, Obama Nominates Lesbian Latina Judge to Pa. Court, The Washington Blade, November 27, 2012; Judge William Thomas May Become First Out Gay Black Male Federal Judge After Obama Nomination, The Huffington Post, November 15, 2012/


Kansas Merit Selection Questioned
There has been some debate since the election as to whether the Kansas legislature should reexamine their merit selection and retention system, and possibly get rid of it for all courts except the state supreme court (which can only be changed by constitutional amendment). A judge on the court of appeals wrote an op-ed this week asking people to consider what the real problems are in the system, and whether or not a different system would fix these problems. The judge, Steve Leben, writes, “…the reason to change seems political. The Kansas Supreme Court’s 2005 decision on school finance ruffled feathers, and some other decisions may have too. But the merit-selection system was designed specifically to limit — to the greatest degree possible — the influence of politics on judicial selection. And we want the judicial branch of government to be out of the political realm as much as possible; we rely on courts and judges to protect our constitutional rights, even when that may be unpopular at a given moment.” The op-ed concludes, “So when you see proposals this January to change the way appellate judges are selected, ask: What’s the problem we’re trying to fix? Is this the best way to do it? And shouldn’t the decision be one for the voters to make, given that they chose the present system?”
Source: Steve Leben, Keep Merit-Based Judicial Selection in Kansas, Kansas City Star, December 2, 2012.


Nonpartisan Elections in Wisconsin Favor Conservatives
According to an article in the Capital Times, nonpartisan elections in Wisconsin favor conservatives for two reasons: “First, turnout among the Democratic base — particularly low-income minority voters — is lower in nonpartisan spring elections, meaning that the spring electorate is whiter and wealthier, which benefits conservative candidates. The second problem for liberals is that many base voters may arrive at the polls uninformed of which nonpartisan judicial candidate is favored by the Democratic Party.” According to the article, “Unlike other electoral modifications that Walker does support — voter ID, the elimination of same-day registration — the establishment of partisan judicial elections would likely benefit Democrats.” The author concludes, “Walker, of course, understands this dynamic better than anybody. In 2004 and 2008, he easily won county-wide nonpartisan elections running as a conservative candidate for Milwaukee County executive. In 2010 and 2012, however, running with the poisonous ‘R’ next to his name as a candidate for governor, he received less than 40 percent of Milwaukee County’s vote.”
Source: Jack Craver, Why Nonpartisan High Court Races in Wisconsin Favor Conservatives, Capital Times, November 30, 2012.


An All Female Bench in California Contrasts an All Male Bench in Iowa
For the first time, there is an all-female federal bench in Northern California that is garnering attention for its diversity in addition to its gender make up. According to an article in The Recorder, “It's [] the first time any major federal courthouse in the country has an all-female bench of both lifetime appointees and their magistrate colleagues. Moreover, five of the six judges who sit in that courthouse are women of color.” The article says, “The phenomenon reflects decades of concerted diversity efforts coupled with random seat assignments — and the preferences of particular judges for where to live and work.” While this district is celebrating their commitment to a diverse bench, a study from the University of Iowa, College of Law has recommendations for how to improve diversity on their-all male bench. According to the author of the report, “the Iowa court has had only two female justices in its history: Linda Neuman, from 1986 to 2003, and Marcia Ternus, from 1993 until 2010. Today, Indiana and Idaho are the only other states with all male supreme courts.” The report argues that the problem lies with the nominating commission, including the lack of diversity on the committee itself and the fact that far fewer women are applying for positions in the first place.
Sources: Vanessa Blum, A Courthouse Of Their Own, The Recorder, November 21, 2012; Tom Snee, Zero Percent Women: Law Study Suggests Changes For Women On Iowa's All Male Supreme Court, Iowa Now, December 3, 2012.