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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) 326-7329"This election is too important for our union not to do its duty," said the former labor leader of his successor.
The former longtime president of the International Brother of Teamsters, James P. Hoffa, called out his successor Sean O'Brien late Thursday over the powerful union's announcement earlier in the week that it would effectively sit on the sidelines of this year's presidential election by refusing to endorse either Kamala Harris or Donald Trump.
"This is a critical error and frankly, a failure of leadership by Sean O'Brien," Hoffa said in a statement. "This election is too important for our union not to do its duty. We must take a stand for working Americans. There is only one candidate in this race that has supported working families and unions throughout their career, and that is Vice President Kamala Harris."
Before retiring as leader of the Teamsters in 2022, Hoffa—whose father was the high-profile union leader Jimmy Hoffa who went mysteriously missing in 1975—served as president for over two decades. O'Brien, known for his brash style and was roundly criticized for speaking at this year's Republican National Convention, took over as Teamsters president the same year Hoffa left.
"In the Teamsters' messy handling of a presidential endorsement, O’Brien has appeared weak, short-sighted, and feckless."
On Wednesday, as Common Dreams reported, the Teamsters announced they would withhold an endorsement after polling of its members showed that neither Harris nor Trump had overwhelming support.
Due to Trump's pronounced and consistent hostility to organized labor and fealty to the corporate class, however, most major unions have treated his potential return to the White House as an existential threat to working people and their families.
As veteran labor reporter Steven Greenhouse wrote this week for Slate:
Trump is an unarguably anti-union candidate. He once said he'd sign a national right-to-work law, he's denounced prominent labor leaders like UAW president Shawn Fain, and he's embraced extremely anti-union business leaders including Elon Musk. Trump recently launched a missile at organized labor's heart by praising the idea of firing striking workers (even though that is illegal under federal law). Three days after O'Brien—in an unusual step for a union leader—spoke at the Republican National Convention to urge the GOP to be nicer to labor, Trump kicked unions in the teeth in his acceptance speech by mocking the United Auto Workers.
Following the announcement by the Teamsters' national leadership, a slew of Teamster locals across the nation, including in key battleground states, rushed their endorsements of Harris out the door.
"Teamsters regional councils—representing hundreds of thousands of members and retirees—in Michigan, Wisconsin, Nevada and western Pennsylvania—endorsed Harris" just hours after O'Brien's announcement, reported the Washington Post's labor correspondent Lauren Kaori Gurley.
"Separately," Gurley added, "powerful local Teamsters unions in Philadelphia; New York City; Long Beach, Calif.; and Miami—as well as the union's National Black Caucus and a group of retirees—have endorsed Harris and urged members to vote for her."
In his statement endorsing the Democratic ticket, William Hamilton, president of the Pennsylvania Conference of Teamsters, said: "In the 45 years the PA Conference of Teamsters has been in existence, it is extremely rare to have a pro-labor candidate for president and a pro-labor candidate for vice president running together. Kamala Harris and Tim Walz are exactly that team."
What stood out to Greenhouse about the nature of the Teamsters' internal polling, which did show broad support for Trump, comes back around to what Hoffa termed a "failure of leadership" when it comes to O'Brien. He wrote:
That internal survey showing so many Teamsters backing Trump highlighted something else: The union’s leadership must have done a dreadful job informing and educating rank-and-file members about how hugely anti-union Trump is and how aggressively anti-union and anti-worker Trump's first administration was (and appointees were). Also, Teamster leaders evidently also failed to explain to rank-and-file members that Harris has fought for policy after policy strongly backed by the Teamsters and other unions, including the Protecting the Right to Organize Act, which is the labor movement’s No. 1 legislative priority and would make it considerably easier for the Teamsters and other unions to organize. Trump opposes the PRO Act. Harris also supported the Bipartisan Infrastructure Act, the CHIPS Act, and the Inflation Reduction Act, which together will create hundreds of thousands of good-paying union jobs for Teamsters and other union members. Harris, unlike Trump, also supports increasing the pathetically low $7.25-an-hour federal minimum wage to at least $15.
"When Sean O’Brien ran to be president of the mighty Teamsters union, he promised to be a strong leader," concluded Greenhouse. "But in the Teamsters' messy handling of a presidential endorsement, O'Brien has appeared weak, short-sighted, and feckless."
Crucially, he added, O'Brien "failed to provide strong leadership on one of his most important tests: to get his union’s rank-and-file and board to reject anti-union Trump" and embrace the Harris, the clear pro-worker candidate in the race.
If Trump ultimately wins, Greenhouse said, the snub of Harris may be something O'Brien and the Teamsters "end up regretting because a second Trump administration will probably be even more of a danger to unions (and democracy) than the first one."
The witness—who claims he falsely identified Owens as the killer because he feared for his life—said that barring a stay, the condemned man "will die for a crime that he did not commit."
Barring an unlikely 11th-hour reprieve from South Carolina's governor or U.S. Supreme Court, correctional officials are set to carry out the state's first execution in 13 years after its attorney general brushed off a key prosecution witness' bombshell claim that the convicted man did not commit the murder for which he is condemned to die.
Freddie Owens—who legally changed his name to Khalil Divine Black Sun Allah while imprisoned—was convicted and sentenced to die by lethal injection for the shooting death of convenience store cashier Irene Graves, a 41-year-old mother of three, during a 1997 robbery.
Although there was no forensic evidence linking the then-19-year-old man to the murder, state prosecutors relied upon the testimony of co-defendant Steven Golden, who pleaded guilty and agreed to testify against Owens as part of a plea deal to spare his own life.
On Wednesday Golden filed an affidavit in the South Carolina Supreme Court in which he declared that he lied about the identity of Graves' killer.
"If this court does not grant a stay, Freddie will die for a crime he did not commit," he wrote.
However, on Thursday the state's highest court rejected Owens' bid.
"Freddie Owens is not the person who shot Irene Graves at the Speedway on November 1, 1997," Golden's filing stated. "Freddie was not present when I robbed the Speedway that day."
"The detectives told me they knew Freddie was with me when I robbed the Speedway," wrote Golden, who was 18 years old at the time of the crime. "They told me I might as well make a statement against Freddie because he already told his side to everyone and they were just trying to get my side of the story."
"I was scared that I would get the death penalty if I didn't make a statement," he continued. "I signed a waiver of rights form and then signed a statement on November 11, 1997."
"In that statement, I substituted Freddie for the person who was really with me in the Speedway that night," Golden claimed. "I did that because I knew that's what the police wanted me to say, and also because I thought the real shooter or his associates might kill me if I named him to the police. I am still afraid of that. But Freddie was actually not there."
Golden—who said he did not name the person who he says killed Graves for fear of his life—added: "I'm coming forward now because I know Freddie's execution date is September 20 and I don't want Freddie to be executed for something he didn't do. This has weighed heavily on my mind and I want to have a clear conscience."
The office of Republican South Carolina Attorney General Alan Wilson responded to Golden's affidavit on Thursday, calling his claim "inherently suspect" and stating that he "has now made a sworn statement that is contrary to his multiple other sworn statements over 20 years."
The attorney general's statement came after a federal judge on Wednesday declined to halt Owens' execution over his legal team's concerns about the provenance of South Carolina's supply of pentobarbital, which is used in lethal injections.
South Carolina unofficially paused executions in 2011 as lethal injection drugs became increasingly difficult to obtain because pharmaceutical companies enacted bans on their use for capital punishment. The state subsequently passed a law protecting the identity of drug suppliers, resulting in renewed stocks.
Additionally, the state Supreme Court ruled in July that executions by firing squad and electrocution do not violate the U.S. Constitution's ban on cruel and unusual punishment, validating a law signed in 2021 by Republican Gov. Henry McMaster that forces condemned inmates to choose between the two methods of execution at a time when lethal injection drugs were still scarce.
Anti-death penalty campaigners on Wednesday submitted a petition with more than 10,000 signatures asking McMaster to grant Owen clemency.
Although the number of U.S. executions has been steadily decreasing from 85 in 2000 to 24 last year, a flurry of impending state killings has raised alarm among human rights activists. Amnesty International says that in addition to Owens, seven men are scheduled to be put to death in the coming month.
"No government should give itself the power to execute people," Amnesty said Thursday on social media. "It is past time for the U.S. to align with other countries that no longer carry out this cruel and inhuman punishment."
A 2014 study determined that at least 4% of people on U.S. death rows were likely innocent.
"I don't think we have seen before, a violation that is so massive, as we are seeing in Gaza now," said one committee leader.
A United Nations committee on Thursday called out Israel for "serious violations" of the Convention on the Rights of the Child in the occupied Palestinian territories, particularly with its nearly yearlong assault on the Gaza Strip.
"The outrageous death of children is almost historically unique. This is an extremely dark place in history," said Bragi Guðbrandsson, vice chair of the U.N. Child Rights Committee, which also released its findings on five other parties to the global treaty—Argentina, Armenia, Bahrain, Mexico, and Turkmenistan.
Since the Hamas-led October 7 attack on Israel, Israeli forces have killed at least 41,272 Palestinians in Gaza and injured another 95,551, according to local officials. Many more remain missing and are believed to be dead and buried in the rubble of bombed civilian infrastructure. The vast majority of the enclave's 2.3 million residents have been displaced, often numerous times.
Earlier this week, the Gaza Health Ministry publicly identified 34,344 Palestinians who have been killed in the Hamas-governed enclave as of August 31. The document spans 649 pages, the first 14 of which are filled with the names of babies. In total, there are 11,355 children.
The U.N. report states that "the committee is gravely concerned about... the outrageously high number of children in Gaza who continue to be killed, maimed, injured, missing, displaced, orphaned, and subjected to famine, malnutrition, and disease, as well as the multiple displacements of the Gazan population, as a result of the state party's indiscriminate and disproportionate attacks on Gaza using explosive weapons with wide-area effects in densely populated areas and its denial of humanitarian access, with at least 1 million children displaced, 21,000 children reported missing, 20,000 children who have lost one or both parents, 17,000 children unaccompanied or separated from their families in Gaza, dozens of child deaths due to malnutrition, and 3,500 children at risk of death due to malnutrition and lack of food."
The panel also expressed alarm over "attacks on and destruction of hospitals, schools, residential buildings, refugee camps, and essential infrastructure, including power facilities and water tanks, by the armed forces, restricting access to health services, education, and housing for the nearly 1 million children living in Gaza."
Guðbrandsson said that "I don't think we can identify any measure that was taken to save children's lives in this military operation in Gaza."
"I don't think we have seen before, a violation that is so massive, as we are seeing in Gaza now," he noted. "These are extremely grave violations that we do not often see."
As Reutersreported:
Israel, which ratified the treaty in 1991, accused the committee of having a "politically-driven agenda," in a statement sent by its diplomatic mission in Geneva.
It sent a large delegation to a series of U.N. hearings in Geneva in early September where they argued that the treaty did not apply in Gaza or the West Bank and said that it was committed to respecting international humanitarian law.
It says its military campaign in Gaza is aimed at eliminating the Palestinian enclave's Hamas rulers and that it does not target civilians but that the militants hide among them, which Hamas denies.
Anne Skelton, chair of the U.N. committee, pushed back against Israel's position on Thursday, telling journalists, "They were not, in our view, facing up to the reality that 17,000 children are dead and that there have been repeated attacks on schools and hospitals."
The report also addresses Israel's claims, saying that "the committee deeply regrets the state party's repeated denial of its legal obligations under the convention in the occupied Palestinian territory (OPT) based on its position that the convention 'does not apply... to areas beyond a state's national territory' and 'was not designed to apply in situations of armed conflict,' and that international humanitarian law is the relevant and specific applicable body of law in the Gaza Strip and the West Bank."
"The committee also regrets the limited information it received on the situation of children living in the OPT due to such a position," the 22-page "concluding observations" document continued. "The committee is of the view that the state party's denial of the application of the convention cannot be used to justify its grave and persistent violations of international human rights and humanitarian law."
The panel cited the International Court of Justice advisory opinion from July that found "international human rights instruments are applicable." The ICJ—which has taken up a genocide case against Israel—also said at the time that the decadeslong Israeli occupation of Gaza and the West Bank, including East Jerusalem, is illegal and must end "as rapidly as possible."
The new report says that the Child Rights Committee, "aligning its position with the position of the ICJ, reiterates that the convention applies to all children at all times and is directly applicable in all territories over which the state party exercises effective control, and reminds the state party of its legal obligations both under the convention and international humanitarian law concerning children in the OPT."
Skelton also argued that "the only real way to serve children's rights in this situation is a cease-fire."
However, Israel has shown no signs of ending its assault on the Palestinian enclave—in fact, fears of a wider regional conflict are heightened this week due to bombings of pagers, walkie-talkies, and other devices across Lebanon, attacks supposedly targeting Hezbollah members that Israeli and U.S. officials attributed to Israel's military and intelligence operatives.
The Child Rights Committee's report follows U.N. Secretary-General António Guterres adding Israel to the so-called "List of Shame" of nations that kill and wound children during armed conflicts, a June decision that outraged Israeli officials but was praised by human rights advocates as long overdue.