The Senate confirmed Alaska Supreme Court Justice Morgan Christen to the U.S. Court of Appeals for the Ninth Circuit on Thursday by a vote of 95-3, three months after she was approved by the Senate Judiciary Committee. Christen will fill one of four vacancies on the Ninth Circuit considered judicial emergencies. “At a time when judges on that circuit are being called upon to handle double the caseload of the other Federal circuit courts, the Senate should have expedited the consideration of Justice Christen’s nomination, not needlessly slowed it down,” said Senate Judiciary Chairman Patrick Leahy (D-Vt.) before the vote. “The Chief Judge of the Ninth Circuit, Judge Alex Kozinski, a Reagan appointee, along with the members of the Judicial Council of the Ninth Circuit, have written to the Senate emphasizing the Ninth Circuit’s ‘desperate need for judges,’ urging the Senate to ‘act on judicial nominees without delay,’ and concluding that
There are 22 other nominees awaiting an up-or-down vote before the Senate adjourns later this month.
The Senate Judiciary Committee voted out the nomination of Brian C. Wimes to the U.S. District Court for the Eastern and Western Districts of Missouri by a voice vote. It also held a nomination hearing for Paul J. Watford, another of the president’s nominees to the U.S. Court of Appeals for the Ninth Circuit.
In the wake of the filibusters of D.C. Circuit nominee Caitlin Halligan and Consumer Financial Protection Bureau nominee Richard Cordray, the nonpartisan group "No Labels," run by former Rep. Tom Davis (R-Va.) and Bill Galston, a former senior adviser to President Clinton, is calling for a plan to end gridlock in Congress that includes filibuster reform. In an op-ed in Politico, Davis suggests up-or-down votes on all presidential nominees within 90 days. In their recent ACS Issue Brief, law professors Richard Painter and Michael Gerhardt also call for time limits on judicial nominations as one of several proposals for reforming the process.
Former George W. Bush attorneys general Michael Mukasey and Alberto Gonzales are expressing alarm over Republican presidential primary candidate Newt Gingrich’s latest proposal to eviscerate the power of the courts, Fox News reports.
Mukasey calls some of the ideas in Gingrich’s position paper “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle," and Gonzales takes particular aim at the suggestion that Congress subpoena judges after controversial rulings, saying, “I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges."
In his 28-page paper, "Bringing the Courts Back Under the Constitution," Gingrich suggests a number of radical ways in which the legislative and executive branches should rein in “lawless judges,” including by eliminating courts they don’t like, limiting the scope of decisions those courts can make, and simply ignoring Supreme Court decisions.
On Gingrich’s suggestion that the entire U.S. Court of Appeals for the Ninth Circuit be eliminated, Mukasey says, “The fact is the Constitution empowers the Supreme Court to establish lower federal courts. Presumably it can undo lower federal courts. But to say that you are going to undo an entire court -- simply because you don't like some of their decisions -- when there are thousands of cases before that court is totally irresponsible."
Mukasey and Gonzales echo the concerns of several other commentators, who have expressed particular alarm over Gingrich’s attack on the landmark decision Cooper v. Aaron, in which all nine members of the Supreme Court affirmed a court order calling for desegregation.
“If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches,” The New York Timeseditorial board asserts.
In her New York Times Opinionator column, American Constitution Society Board Member Linda Greenhouse calls “truly head-spinning” the “tenuous hold that this screed, from a onetime history professor, has on American history.” She continues:
By Harold Baer Jr., U.S. District Judge for the Southern District of New York
As we watch the Arab spring unfold and hear the depressing stories of how the People’s Republic of China deals with human rights, Judges Under Fire: Human Rights, Independent Judges, and the Rule of Lawbecomes a must read. It provides insights into how the Rule of Law and an independent judiciary have fared over the last 300 years around the world. More to the point, it demonstrates what happens when judges and citizens lose track of the vital tenets to which the book is devoted.
On that score, one can’t help but wonder how some of the newly liberated countries will fare. Will they ensure that the Rule of Law is a part of their rebirth? How sad it will be if countries like Egypt and Libya slip back into anarchy. My book provides the reader with stories of how easy it could be for that to happen, both in older established countries as well as in fledgling republics. It supports the proposition that without the Rule of Law and an independent judiciary, democracy as we know it cannot survive. It is this proposition that we must bring to the attention of the leaders of these newly liberated countries.
A proposed balanced budget amendment is dead, for now. The Senate defeated two versions of the measure aimed at enshrining in the Constitution a demand that the federal government maintain a balanced budget.
The House handily defeated a version, similar to one Congress nearly passed in 1995, last month. The Senate, however, had to vote on a so-called balanced budget amendment because of the deal reached in late summer to end the debt-ceiling debacle. The Senate, mostly along Party lines, rejected two versions of a balanced budget amendment.
Sen. Dick Durbin, (D-Ill.), speaking from the Senate floor yesterday, said some of his colleagues “believe we should enshrine in our Constitution their views of what the federal budget should look like. They want to radically reshape our constitutional framework in order to relieve Congress of its political and moral responsibility to make tough choices about taxing and spending. They want to tie the hands of Congress on budget decisions and pass important decisions on to another branch of government, our federal judiciary.”
“This is not what the Founding Fathers intended,” Durbin continued. “The Constitution gives the power of the purse expressly to Congress. Fulfilling the constitutional duty carries some political risk, but we all signed up for that job. Members of Congress should not try to change the Constitution to avoid their duty to make tough and important decisions.”
Earlier this month, Alan B. Morrison, a distinguished law professor at George Washington University, testified before a Senate panel against a balanced budget amendment. Morrison, in part, said the measures being considered would likely force the federal courts into budgetary matters. He said that “thrusting the courts into budget battles is to me, and I believe to most others who have given the matter any serious thought, a terrible idea.” Morrison’s entire testimony is available here.
Durbin, during his floor remarks, cited Morrison’s testimony, saying, “He asked the basic question: Who is going to enforce this amendment? If in fact Congress does something in violation of the amendment, who can sue? And which court would consider it? It is a valid question because ultimately this will end up in the courts. The courts will have to make some rather unique decisions. What are the outlays and receipts of the United States? What was the gross domestic product? These are issues which many in the court may find challenging if not impossible to deal with on a timely basis.”
Sen. Harry Reid (D-Nev.) filed cloture Thursday evening on the nomination of Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit. That vote to end debate and hold an up-or-down vote on her nomination will occur Tuesday at noon. Halligan was nominated to fill a seat vacated in 2005 by now-Chief Justice Roberts.
As part of a deal to schedule votes on five nominees, the Senate unanimously confirmed the nomination of Christopher Droney to the U.S. Court of Appeals for the Second Circuit. Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, notes Judge Droney will fill a judicial emergency vacancy that has existed for more than two years.
The Senate Judiciary Committee reported out the nominations by voice vote of Jacqueline H. Nguyen to the U.S. Court of Appeals for the Ninth Circuit, Gregg Jeffrey Costa to the U.S. District Court for the Southern District of Texas, and David Campos Guaderrama to the U.S. District Court for the Western District of Texas.
President Obama nominated U.S. Magistrate Judge Timothy S. Hillman to the U.S. District Court for the District of Massachusetts, U.S. Magistrate Judge Robin S. Rosenbaum to the U.S. District Court for the Southern District of Florida, and litigator Robert J. Shelby to the U.S. District Court for the District of Utah.