January, 02 2013, 02:14pm EDT

Empty Courtrooms in Obama's First Term: A Slow Start on Judicial Nominations Magnified Many Times Over By Republican Obstruction
WASHINGTON
As the U.S. Senate departs for the year, it leaves behind unfinished business: four long-pending circuit court nominations and 70 unfilled vacancies in the federal courts, with another 20 upcoming vacancies already announced.
President Obama ends his first term with more federal judicial vacancies than when he began. There are a number of reasons for this failure to efficiently fill seats in the federal courts, including the president's slow start in making nominations in the early years of his first term. But that slow start was magnified many times over by Senate Republicans' extreme intransigence, leading to a historic vacancy crisis in our federal courts that has persisted long after the White House picked up its pace on nominations. In an effort to keep the courts dominated by George W. Bush-nominated conservatives and to stall the president's agenda wherever possible, Senate Republicans have stymied the nomination and confirmation of federal judicial nominees at every step in the process and at an unprecedented scale.
The result was that almost every one of President Obama's first-term judicial nominees was delayed in the Judiciary Committee, and once approved by the Committee, waited an average of three times as long for a confirmation vote from the full Senate as did President Bush's first-term nominees.
That persistent obstruction led to record vacancy levels in the federal courts. The 55 vacancies at the start of Obama's presidency jumped to 90 over the course of his first year in office, and they have rarely gone below that number since. Notably, the president also ends his first term without confirming a single judge to the enormously influential Court of Appeals for the D.C. Circuit, four of whose 11 seats are now vacant.
There were, of course, bright spots in the past four years of judicial nominations. Two extraordinarily qualified women earned seats on the Supreme Court. Sonia Sotomayor became the nation's first Latina Supreme Court justice, and Elena Kagan brought the total number of women on the Court to three for the first time in history.
President Obama also brought unprecedented diversity to the lower federal courts. 41 percent of President Obama's confirmed judicial nominees have been women - the highest percentage in history - and he has now put more women on the federal bench in four years than President Bush did in eight. President Obama has also nominated a higher percentage of African Americans, Hispanics, and Asian Americans than any previous president, ensuring that our federal courts are beginning to reflect the country they serve. In addition, President Obama has put more openly LGBT people on the federal bench than all of his predecessors combined.
But this effort to bring talented, fair-minded Americans with a diversity of backgrounds to the federal bench has been hampered by a consistent and needless slow-walking of nominees in the U.S. Senate. This memo outlines the obstruction tactics that have resulted in a persistently high vacancy rate in the federal courts and needless delays for Americans seeking justice.
Abuse of the Filibuster and Filibuster Equivalents
The most well-known tool of Senate obstruction - the filibuster - has been abused to a new level by the Senate GOP in the last two Congresses. In 2005, many Senate Republicans loudly proclaimed that it was unconstitutional - not just a bad idea, but actually a violation of the United States Constitution - for Democratic senators to filibuster a small number of George W. Bush's circuit court nominees on the well-documented grounds that they were dangerously out of the mainstream. A few others joined the bipartisan "Gang of 14," agreeing that filibusters of judicial nominations were only appropriate under undefined "extraordinary circumstances." After January 20, 2009, they threw their claimed principles to the wind and made clear just what constitutes "extraordinary circumstances" in their book: being nominated by a Democratic president.
The Senate GOP expanded the use of filibusters to stall the confirmation of consensus circuit court nominees. Of the ten circuit court nominations on which Democrats have had to file cloture in order to break GOP obstruction, half had cleared the Judiciary Committee with overwhelming bipartisan support, and half went on to be confirmed with similarly overwhelming bipartisan support. In one typical example, Republicans filibustered the nomination of Adalberto Jordan of Florida to sit on the Eleventh Circuit Court of Appeals, blocking a vote for four months after he was approved unanimously by the Judiciary Committee. (In contrast, the average confirmed circuit court nominee during President Bush's first term waited only a month for a floor vote.) Jordan, who had the strong support of Florida Republican Sen. Marco Rubio, would become the first Cuban American to sit on the Eleventh Circuit. Once the filibuster was broken 89-5, he was confirmed in a 94-5 vote. No apologies or explanations for the filibuster were ever given.
Notably, the Senate GOP has been willing to filibuster even noncontroversial district court nominees, who historically have faced little partisan resistance on their way to trial court positions. The majority party had to move to end a filibuster of one district court nominee during the Clinton administration and one during the George W. Bush administration. In contrast, in just four years of President Obama's administration, the majority has been forced to file twenty cloture petitions to end filibusters of district court nominees, almost all of whom were eventually confirmed unanimously or near-unanimously.
And this is just obstruction that ended in cloture votes. Because scheduling a vote in the Senate requires unanimous consent, Senate Republicans have been able to quietly delay votes on judicial nominees for months without stating a reason. These quiet delays - which effectively amount to filibusters but are not formally recorded as such - have led to a tremendous and damaging slowing of the confirmation process. President Obama's circuit court nominees have, on average, been forced to wait 135 days between committee approval and a vote from the full Senate. In contrast, President Bush's first-term circuit court nominees waited an average of just 37 days for a Senate vote. Similarly, President Obama's district court nominees have waited an average of 103 days for a Senate vote, in contrast to just 35 days for Bush's first-term nominees.
Three of the four currently pending circuit court nominees have been held up by this type of silent filibuster: the GOP has simply refused to allow confirmation votes for Patty Shwartz (Third Circuit, waiting for a vote since March), Richard Taranto (Federal Circuit, also waiting since March), and William Kayatta (First Circuit, waiting since April). The fourth - Robert Bacharach - has been waiting "only" since June. Republicans defeated a cloture petition to end the filibuster of Bacharach's nomination, even after his home-state Republican senator Tom Coburn said that such a move would be "stupid." Not one of these nominees is opposed by their home state senators. In fact, two - Maine's Kayatta and Oklahoma's Bacharach - come from states where those supportive senators are both Republicans. All four nominees have received the highest possible evaluation of their qualifications by the ABA. They simply are not controversial. Their "problem" is that they are mainstream jurists nominated by President Obama.
Creative Obstruction
Filibusters and obstruction tactics on the Senate floor are the most visible types of Senate gridlock, but the GOP's obstruction of President Obama's first term judicial nominees went much deeper.
It started with the very process of finding potential nominees. President Obama has consulted extensively with home state senators to find qualified federal judicial nominees. But despite these efforts, a number of nominees are stuck in the Judiciary Committee awaiting hearings because the nominee's home-state senators have refused to give their permission for the nomination to go forward. In committee jargon, these senators have not signed the "blue slip" signaling a formal go-ahead.
For instance, the people of Georgia can thank their own senators for two long-open district court vacancies. In January 2011, President Obama nominated Linda T. Walker and V. Natasha Perdew Silas to fill two officially-designated emergency vacancies in Georgia's Northern District. Sens. Johnny Isakson and Saxby Chambliss opposed Silas but never said why. Nevertheless, that was enough to keep her from even getting a hearing before the Judiciary Committee. And since Silas's nomination was linked to Walker's, the Georgia senators' machinations wrecked both nominations. Similarly, without giving a reason, Isakson and Chambliss have not submitted their blue slips for the undoubtedly qualified Jill Pryor for a Georgia-designated Eleventh Circuit seat, leaving her nomination in limbo for 10 months and counting.
In 2011, freshman Wisconsin senator Ron Johnson refused to submit his blue slips when President Obama renominated a circuit and district court nominee who had not gotten votes in 2010. These were nominees who had been recommended by a bipartisan commission, and no other newly elected senator that year blocked similar renominations in their state. As with Georgia's district court nominations, these were returned to the White House, and the seats remain vacant and without nominees.
This summer Louisiana Sen. David Vitter blocked the committee from considering the nomination of Shelly Dick to a district court seat she'd been nominated to back in April, unilaterally deciding that the Judiciary Committee should not consider her nomination because it was too close to the presidential election. After Obama's victory, Vitter relented, presenting her to the committee with his full support last month (but too late to be confirmed in 2012, as she should have been). In Nevada, Sen. Dean Heller has blocked a committee hearing on Elissa Cadish for reasons widely condemned as ludicrous: before the Supreme Court's 2008 gun control decision in Heller, she correctly described to a newspaper what was then the state of Second Amendment law.
Unfortunately, even once nominees had a chance to testify before the Judiciary Committee, they were not free from stalling tactics. Ranking Member Chuck Grassley, like Ranking Member Jeff Sessions before him, took advantage of a rule allowing the minority party to postpone committee votes on nominees to stall all but five of the nominees the committee considered - a full 97% of the nominees that have come before the committee for a vote. These nominations were delayed anywhere between one and six weeks before heading to further delays on the Senate floor.
Empty Excuses
In attempting to defend the indefensible, Senate Republicans have been flaunting faulty statistics and nonsensical comparisons. Criticized last month for his consistent use of stalling tactics, Sen. Grassley claimed that the Senate had confirmed more nominees in President Obama's first term than in a "similar period" in Bush's presidency. The "similar period" he referred to was in fact a "dissimilar period" - he cherry-picked numbers in order to compare President Obama's first term with George W. Bush's second term, in which the Senate confirmed fewer nominees simply because there were fewer vacancies to fill. And in any event, Bush's second-term confirmed nominees, just like his first, got a floor vote on average far more quickly than Obama's.
A Second-Term Focus on the Courts
One of the Senate's key duties is to ensure the health of the nation's judicial branch. But the Republican minority has increasingly ignored its duty to "advise and consent," instead using judicial nominees as pawns in politically-motivated gridlock. This has resulted in a vacancy crisis that has left federal courts across the country understaffed and unable to provide swift access to individuals and businesses seeking their day in court. It has also meant that the right-wing ideology that President Bush required in his judicial nominees continues to dominate the federal courts.
Elections have consequences. The American people once again decisively chose President Obama as the person we want to be choosing our federal judges. He has made an effort to name fair jurists with broad bases of support and diverse backgrounds. Senate Republicans have a responsibility to take their "advise and consent" duties seriously, considering nominees on their merits and moving the confirmation process as efficiently as possible in order to ensure a court system that works for the Americans who depend on it.
President Obama has signaled that he will make judicial nominations a priority in his second term. The Senate must do better in the next four years to ensure that Americans have a federal court system that works.
People For the American Way works to build a democratic society that implements the ideals of freedom, equality, opportunity and justice for all. We encourage civic participation, defend fundamental rights, and fight to dismantle systemic barriers to equitable opportunity. We fight against right-wing extremism and the injustice it fosters.
1 (800) 326-7329LATEST NEWS
As Historic Heatwave Grips Europe, Coalition Says 'No to a Climate Law for Polluters'
"Will the European Commission propose a climate law that ends fossil fuel use and reflects the E.U.'s fair share of climate responsibility? Or will it choose political convenience?"
Jun 30, 2025
As yet another dangerous heatwave pushes temperatures well into the triple digits across much of Europe, climate defenders on Monday renewed calls for stronger action to combat the planetary emergency—including by ensuring that the impending European Climate Law ends fossil fuel use and eschews false solutions including international carbon offsetting.
Croatia, France, Italy, Portugal, and Spain are among the countries where near- or record-high temperatures have been recorded. Portugal and Spain both recorded their hottest-ever June days over the weekend. El Granado in southwestern Spain saw the mercury soar to nearly 115°C (46°C) on Saturday. The heatwave is expected to continue into the middle of the week, with authorities warning of elevated wildfire risk and potential severe health impacts.
"Extreme heat is no longer a rare event—it has become the new normal," United Nations Secretary-General António Guterres said Sunday on social media. "I'm experiencing it firsthand in Spain during the Financing for Development Conference. The planet is getting hotter and more dangerous—no country is immune. We need more ambitious #ClimateAction now."
On Monday, Real Zero Europe—"a campaign calling on the European Union to deliver real emissions reductions and real solutions to the climate crisis, instead of corporate greenwashed 'net zero' targets"—published a call for an E.U. Climate Law that does not contain provisions for international carbon offsetting, in which countries or corporations compensate for their greenhouse gas emissions by funding projects that reduce emissions in other nations.
🔴 OUT NOW📢 69 NGOs call on the EU to deliver a Climate Law that rejects international carbon offsetting & Carbon Dioxide Removals (#CDR), commits to a full fossil fuel phase-out, and reflects Europe’s fair share of climate responsibility!Read the statement👇www.realzeroeurope.org/resources/st...
[image or embed]
— Real Zero Europe (@realzeroeurope.bsky.social) June 30, 2025 at 2:40 AM
A draft proposal of the legislation published Monday by Politico revealed that the European Commission will allow E.U. member states to outsource climate efforts to Global South nations staring in 2036, despite opposition from the 27-nation bloc's independent scientific advisory board. The outsourcing will enable the E.U. to fund emissions-reducing projects in developing nations and apply those reductions to Europe's own 2040 target—which is a 90% net decrease in greenhouse gas emissions from 1990 levels.
The proposal also embraces carbon dioxide removal (CDR) technologies like carbon capture and storage, whose scalability is unproven. Climate groups call them false solutions that prolong the fossil fuel era.
"E.U. climate policy stands at a crossroads: Will the European Commission propose a climate law that ends fossil fuel use and reflects the E.U.'s fair share of climate responsibility?" the Real Zero Europe letter says. "Or will it choose political convenience—abandoning that goal under pressure from corporate and populist interests, and turning to risky, unjust carbon offsetting and other false solutions?"
"Taking responsibility for the E.U.'s past and present role in causing the climate crisis means doubling down on a just and full fossil fuel phaseout not hiding behind false solutions as currently proposed," the letter continues. "The law as planned will send a dangerous signal far beyond E.U. borders. The climate and biodiversity crises are already harming people, especially vulnerable communities and populations largely in the Global South, who have least contributed to the climate crisis."
The 69 groups stress that international carbon offsetting "is a smokescreen for giving license to fossil fuel use beyond 2050" that diverts critical resources and public funds from real climate solutions and climate finance."
"Given the scale of climate catastrophe, for the E.U. to allow international offsets and technological CDR gives a lifeline to polluting industries such as the fossil fuel, agribusiness, plastics, and petrochemical industries," the letter states.
"We say no to an E.U. Climate Law that puts polluting industries over people and climate by embracing the use of international offsets and CDR approaches," the letter's signers said. "We call on the Commission to deliver an E.U. Climate Law and its Nationally Determined Contribution (NDC) to the U.N. climate negotiations that clearly reflects the bloc's responsibility for the climate crisis. That means a full fossil fuel phaseout and a just transition."
This heatwave is brutal. Temperatures above 40°C in June across France, Spain, Italy...We still hear from right-wing politicians that “it’s just summer.” It’s not. This is the climate crisis courtesy of the fossil fuels industry. It’s not normal.
[image or embed]
— European Greens (@europeangreens.eu) June 30, 2025 at 7:01 AM
U.N. High Commissioner for Human Rights Volker Türk also addressed the European heatwave on Monday, saying that "the climate crisis is a human rights crisis."
"Rising temperatures, rising seas, floods, droughts, and wildfires threaten our rights to life, to health, to a clean, healthy and sustainable environment, and much more," he continued. "The heatwave we are currently experiencing here shows us the importance of adaptation measures, without which human rights would be severely impacted."
"It is equally clear that our current production and consumption patterns are unsustainable, and that renewables are the energy source of the future," Türk asserted. "Production capacity for renewables increased five-fold between 2011 and 2023. What we need now is a roadmap that shows us how to rethink our societies, economies and politics in ways that are equitable and sustainable. That is, a just transition."
"This shift requires an end to the production and use of fossil fuels and other environmentally destructive activities across all sectors—from energy to farming to finance to construction and beyond," he added. "This will be one of the greatest transformations our world has ever seen."
Keep ReadingShow Less
'Hell No,' Say Critics as Trump's Megabill Poised to Drastically Expand ICE's Dragnet
"This is the level of funding where all the possibilities for American politics that have been described as hyperbolic over the past decades—the comparisons to Nazi Germany and other nightmares of the 20th century—become logistically possible and politically likely," wrote one observer.
Jun 30, 2025
Critics are sounding the alarm as congressional Republicans edge closer to passing a sweeping tax and spending bill desired by U.S. President Donald Trump that would inject tens of billions of dollars of funding into U.S. Immigration and Customs Enforcement, the agency at the forefront of the president's immigration crackdown.
"Republicans' Big, Bad Betrayal Bill shovels BILLIONS OF DOLLARS more into ICE's budget. Yes, the same ICE that has arrested U.S. citizens, carried out illegal deportations, and denied members of Congress access to detention facilities. HELL NO," wrote Rep. Pramila Jayapal (D-Wash.) on X on Sunday.
On Monday, the Senate kicked off a vote-a-rama process where senators can demand an unlimited number of votes on amendments to the reconciliation package.
While negotiations on the legislation are still ongoing, the version of the reconciliation bill that was narrowly advanced in the Senate on Saturday includes $29.85 billion for ICE to "remain available through September 30, 2029" for personnel recruitment, technology for "enforcement and removal operations," and other priorities. It also includes $45 billion "for single adult alien detention capacity and family residential center capacity," also available through the same period.
The bill text also includes $46.5 billion for U.S. Customs and Border Protection to spend on border infrastructure, to remain available through September 30, 2029.
Journalist Nicolae Viorel Butler, who reports on immigration for the outlet Migrant Insider, reported on Sunday that all told the measure proposes in excess of $175 billion in "direct immigration-related funding for fiscal year 2025."
This, Butler wrote, reflects "a historic expansion of immigration enforcement operations under a Republican-controlled Congress and the Trump administration."
This money would be a big addition on top of what these agencies already receive. For example, a National Immigration Forum explainer focused on the House version of the reconciliation package noted that $45 billion for ICE detention capacity constitutes an 800% increase in detention funding compared to fiscal year 2024.
"This is the level of funding where all the possibilities for American politics that have been described as hyperbolic over the past decades—the comparisons to Nazi Germany and other nightmares of the 20th century—become logistically possible and politically likely," wrote the philosopher Olúfẹ́mi O. Táíwò on Bluesky, commenting on the infusion of funding.
In every state, immigration arrests carried out by ICE have sharply increased. Also the number of those arrested and detained by ICE who have no criminal record is up more than 1,400% compared to a year ago, according to The Washington Post.
Increased funding for ICE and immigration enforcement is not the only part of the bill drawing scrutiny.
In May, nonpartisan budget scorekeepers said that the U.S. House of Representatives-passed version of the legislation would, if passed, cut household resources for the bottom 10% of Americans while delivering gains to the wealthiest in the form of tax breaks. Bobby Kogan, senior director of federal budget policy at the Center for American Progress, called the House version of the legislation the "the largest transfer of wealth from the poor to the rich in a single law in U.S. history."
"If the Republican budget passes, a lot of Americans will indeed suffer. But so too will millions of noncitizens who came to the U.S. seeking better lives for themselves and their families," wrotePost columnist Philip Bump of the increase in funding for ICE.
Keep ReadingShow Less
UN Expert Calls for 'Defossilization' of World Economy, Criminal Penalties for Big Oil Climate Disinformation
Fossil fuel companies have for decades "instilled doubt about the need to act on, and the viability of, renewables," said U.N. climate expert Elisa Morgera.
Jun 30, 2025
As health officials across Europe issued warnings Monday about extreme heat that could stretch into the middle of the week in several countries—the kind of dangerous conditions that meteorologists have consistently said are likely to grow more frequent due to human-caused climate change—a top United Nations climate expert told the international body in Geneva that the "defossilization" of all the world's economies is needed.
Elisa Morgera, the U.N. special rapporteur on climate change, presented her recent report on "the imperative of defossilizing our economies," with a focus on the wealthy countries that are projected to increase their extraction and use of fossil fuels despite the fact that "there is no scientific doubt that fossil fuels... are the main cause of climate change."
"Despite overwhelming evidence of the interlinked, intergenerational, severe, and widespread human rights impacts of the fossil fuel life cycle," said Morgera, "these countries have and are still accruing enormous profits from fossil fuels, and are still not taking decisive action."
World leaders must recognize the phase-out of fossil fuels "as the single most impactful health contribution" they could make, she argued.
Morgera named the U.S., U.K., Australia, and Canada as wealthy nations where governments are still handing out billions of dollars in subsidies to fossil fuel companies each year—direct payments, tax breaks, and other financial support whose elimination could reduce worldwide fossil fuel emissions by 10% by 2030, according to the report.
"These countries are responsible for not having prevented the widespread human rights harm arising from climate change and other planetary crises we are facing—biodiversity loss, plastic pollution, and economic inequalities—caused by fossil fuels extraction, use, and waste," said Morgera.
She also pointed to the need to "defossilize knowledge" by holding accountable the companies that have spent decades denying their own scientists' knowledge that continuing to extract oil, coal, and gas would heat the planet and cause catastrophic sea-level rise, hurricanes, flooding, and dangerous extreme heat, among other weather disasters.
Defossilizing information systems, said Morgera, would mean protecting "human rights in the formation of public opinion and democratic debate from undue commercial influence" and correcting decades of "information distortions" that have arisen from the public's ongoing exposure to climate disinformation at the hands of fossil fuel giants, the corporate media, and climate-denying politicians.
Morgera said states should prohibit all fossil fuel industry lobbying, which companies like ExxonMobil and Chevron spent more than $153 million last year in the U.S. alone—with spending increasing each year since 2020, according to OpenSecrets.
"More recent research has documented climate obstruction—intentional delaying efforts, including through media ownership and influence, waged against efforts for effective climate action aligned with the current scientific consensus," wrote Morgera. "Fossil fuel companies' lobbyists have increased their influence in public policy spaces internationally... and at the national level, to limit regulations and enforcement. They have instilled doubt about the need to act on, and the viability of, renewables, and have promoted speculative or ineffective solutions that present additional lock-in risks and higher costs."
While a transition to a renewable energy-based economy has been portrayed by the fossil fuel industry and its supporters in government as "radical," such a transition "is now cheaper and safer for our economics and a healthier option for our societies," Morgera toldThe Guardian on Monday.
"The transition can also lead to significant savings of taxpayer money that is currently going into responding to climate change impacts, saving health costs, and also recouping lost tax revenue from fossil fuel companies," she said. "This could be the single most impactful health contribution we could ever make. The transition seems radical and unrealistic because fossil fuel companies have been so good at making it seem so."
In addition to lobbying bans, said Morgera, governments around the world must ban fossil fuel advertising and criminalize "misinformation and misrepresentation (greenwashing) by the fossil fuel industry" as well as media and advertising firms that have amplified the industry's disinformation and misinformation.
Several countries have taken steps toward meeting Morgera's far-reaching demands, with The Hague in the Netherlands introducing a municipal ordinance in 2023 banning fossil fuel ads, the Australian Green Party backing such a ban, and Western Australia implementing one.
The fossil fuel industry's "playbook of climate obstruction"—from lobbying at national policymaking summits like the annual U.N. Climate Change Conference to downplaying human rights impacts like destructive storms and emphasizing the role of fossil fuels in "economic growth"—has "undermined the protection of all human rights that are negatively impacted by climate change for over six decades," said Morgera.
Morgera pointed to three ways in which states' obligations under international humanitarian laws underpin the need for a fossil fuel phaseout by 2030:
- The survival of states that contributed minimally to climate change is impaired by loss of territory to sea-level rise and/or protracted unsafe climatic conditions;
- People are substantially deprived of their means of subsistence because of the severe deterioration of entire ecosystems due to climate change due to flooding, drought, and extreme heat; and
- The cultural survival of the populations of small island developing states, Indigenous peoples, people of African descent, peasants and small-scale fishers is impaired by loss of territories, protracted unsafe climatic conditions and/or severe ecosystem degradation.
Morgera's report was presented as more than a third of Tuvaluans applied for a visa to move to Australia under a new climate deal between the two countries, as the Pacific island is one of the most vulnerable places on Earth to rising sea levels and severe storms.
Morgera said that fossil fuel industry's impact on the human rights of people across the Global South—who have contributed little to the worsening of the climate emergency—"compels urgent defossilization of our whole economies, as part of a just, effective, and transformative transition."Keep ReadingShow Less
Most Popular