If Dems get a chance to confirm Garland in the lame duck session, they should take it

Merrick Garland

At last Thursday's Democratic debate, moderators asked Democratic presidential candidates Hillary Clinton and Bernie Sanders a question from NY Daily News reader Hannah Green regarding Obama's nomination of Merrick Garland to the Supreme Court vacancy left by the death of Antonin Scalia.

Hannah Green (ph) wants to know your position, Secretary Clinton, regarding President Obama's nomination of Merrick Gaarland to the Supreme m Court. President Obama said earlier this week that he would not withdraw the nomination, even after the presidential election. If elected, would you ask the president to withdraw the nomination?

Both Clinton and Sanders said that the currently support the nomination and strongly denounced Sen. Republicans for obstructing Garland's appointment. But they differed on whether they would ask Obama to withdraw the nomination if they were elected president: 

Clinton indicated acceptance of Obama's pick:

I am not going to contradict the president's strategy on this. And I'm not going to engage in hypotheticals. I fully support the president.

Sanders said he would ask Obama to withdraw the nomination:

...obviously I will strongly support that nomination as a member of the Senate. But, if elected president, I would ask the president to withdraw that nomination because.... I think that we need a Supreme Court justice who will make it crystal clear, and this nominee has not yet done that, crystal clear that he or she will vote to overturn Citizens United and make sure that American democracy is not undermined.  

(Debate transcript from CNN.)
I want to be careful about extrapolating inaccurate meanings from their words, but it seems that Clinton is indicating that she'd be open to having Garland confirmed to the court in a lame duck session if Democrats retain the presidency and retake the Senate. Sanders, on the other hand, would want to wait to get a better judge (meaning younger, more liberal and perhaps non-white or female.)

I agree with Clinton.  I think the costs of passing up a chance to get Garland on the bench are greater than the gains of holding out for some one potentially better (in the admittedly extremely low chance that Garland ever actually gets a vote).  Hit the jump for my reasoning.

End-of-Year judicial confirmation update

On the judicial appointment front, there was good news and bad news before Congress skipped town last week. 

The good news was that the Senate confirmed two of President Barack Obama's long-pending judicial nominations.

The bad news was that the two were for the D.C. Superior Court, the local trial court for the nation's capital and not one with federal jurisdiction.

Overall, 2015 proceeded about as poorly on the judicial confirmation front as possible without a complete blockade of Obama appointees. The Senate only got around to confirming 10 District Court judges and only one Circuit Court Nominee. 

Compare that record with the 12 circuit court and 76 District Court Appointees confirmed in 2014 with a Democratic-controlled Senate and no filibuster for lower-court appointees.

And we won't even talk about the Court of Federal Claims appointees lying fallow.

Yes, elections matter, why do you ask?

Obama has compounded this problem by not nominating any more circuit court judges (though he has continued to nominate considerable numbers of district court judges). Granted, this is something of a chicken-and-egg problem, as McConnell has hinted the Senate wouldn't confirm any new circuit judge appointments anyway. However, it would still be nice to try -- especially given two long-standing openings on the Fifth Circuit, currently controlled 10-5 by GOP appointees and having a median justice somewhere to the right of Atilla the Hun, especially on reproductive rights.

Mitch McConnell has agreed to schedule final votes for four more district court judges by President's Day and Luis Felipe Restrepo on January 11.

It ain't much, but it is a start.

Obama judicial appointments slow to a crawl

Much of the focus in the Senate right now is justifiably on the GOP majority's slow-walking Loretta Lynch's confirmation vote for attorney general on the Senate floor. 

But what's getting a lot less attention is the predictable lack of traction that President Obama's judicial nominations are getting.

The Senate has not confirmed a single judicial appointment this year in three months of work.

Contrast that with the first three months of 2014, the Democratic majority confirmed three circuit court judges and 16 district court judges.

In the first three months  of 2007, the incoming Democratic majority confirmed two of George Bush's circuit court nominees and 13 district court nominees.

Four rather uncontroversial district court nominations are waiting for a floor vote --three in Texas and one in Utah -- all which easily cleared the Judiciary committee in February. They'll get through the Senate eventually, but somehow I don't think Mitch McConnell has them as a priority.

Just another reminder that elections matter.

Boggs hearings represent mere hiccup -- Obama judge picks continue confirmation surge

There’s been a lot of frustration among Progressives over Republican senators continuing to block Obama judicial picks in committee thanks to the blue slip method.  The latest manifestation of the frustration comes with the nomination of Michael Boggs, a Republican-backed candidate nominated as part of a deal to fill several slots on federal bench in Georgia (In return for nominating Boggs and two other district appointments, Georgia’s Republican Senators agreed to allow the nomination of Jill Pryor to move forward for the 11th Circuit Court seat and Leigh Martin May for a district judge seat.)

Progressives' frustration is understandable – as a state judge and legislator Boggs has defended voter identification laws, displaying the Confederate flag and opposed gay rights. However, Democrats should also keep their eyes on the forest through the trees: with the elimination of the filibuster for most executive nominations last November, judicial confirmations have drastically increased.

How much?  In 2014, the Senate has confirmed 40 judges thus far – 33 in the district courts and seven in the appellate courts. During the first five years of Obama’s presidency, the previous high number of judges confirmed through the end of May was 24 (in 2011 and 2012).  That translates into an increase of 67 percent in the number of judicial confirmations. Oh – and we’ve still got another week of Senate business to go in May. 

In addition, the vacancy rate is also starting to decline noticeably on the federal bench.  At the beginning of December, just after the Senate eliminated the filibuster, there were 86 vacancies on the district and circuit courts. That number increased on February 1 to 96 openings – likely because GOP obstruction forced Obama to resubmit every nomination, forcing a fresh round of committee hearings. However, by the beginning of March, the number of vacancies was beginning to fall and has continued to decline ever since. By May 20, the number of vacancies had declined to 67, a decrease of 30 percent from its February high (See figure).

Again, this happening doesn’t mean that everything is rosy.  In some states dominated by conservatives, the process is slow (like in Georgia) or seems entirely hopeless, like in Texas (though the Fifth Circuit court will pick up Texan Greg Costa today).  

And would some one give Jennifer Prescod May-Parker of North Carolina a commission already?

However, even in some conservative states there has been progress.  Four nominees from Florida have cleared committee and await final confirmation after months of obstruction from Senator Marco Rubio. More importantly, Arizona has a functioning district court for the first time in several years as six  nominees received confirmation last week – including Rosemary Marquez, who was first nominated in 2011 and blocked by Arizona's senatorial delegation, and Diane Humetewa, the first Native American woman to become a federal judge.

The point is that progressives are right to be frustrated by continuing blocking of some nominations,  however, we should keep it in the back of our minds that nominations are flowing much more quickly now than they were a year ago.

Senior (judge) moments slow progressive turnover in U.S. Courts

With the filibuster dead for most executive appointments, Senate Majority Leader Harry Reid has stepped on the gas for judicial appointments this spring.  As of May 2, the body had confirmed four circuit court judges and 24 district court judges in 2014 – a veritable consentapalooza.

But for all the progress on nominations, the character of the federal bench is changing more slowly than it appears on the surface. Many judges who retire from their court don’t fully step down. Rather, when they take senior status, they still hear some cases. 

How big of a stamp can these semi-retired judges make? Sometimes a profound one, depending how the draw affects the composition of a three-judge panel at the circuit court level -- one step below the Supreme Court.

Take for example the recent infamous case Hobby Lobby vs. Sebelius currently before the Supreme Court – in which a corporation claims to have religious rights to evade the contraception mandate in the Affordable Care Act. The opinion at DC Circuit was authored bynoted fire-breathing conservative circuit justice Janice Rodgers Brown. However, the other judge that joined the opinion was A. Raymond Randolph – a George H.W. Bush appointee who took senior status in 2008. (For that matter, the dissenting justice was Harry Edwards, a Carter appointee who took senior status in 2005)

Semi-active senior judges also boast impressive numbers.

With the confirmations of Michelle Friedland and Nancy Moritz (Moritz is up on Monday) , Democratic appointees will hold 80 judgeships on the circuit courts and GOP appointees hold 74, with 14 vacancies.  

However, there are 91 active judges with senior status – 55 appointed by Republican presidents and 36 by Democrats. Throwing them into the mix leaves us with 129 Republican appointees and 116 appointed by Democrats – quite a shift.

This comparison is a bit misleading – most of those senior judges don’t hear as many cases so the GOP advantage is overstated considerably. (Senior judges hear about 15 percent of all cases across the court system.) Nor do senior-status judges sit on en-banc cases at the appellate level in which the entire court hears a case and often overturns the decision of a smaller three-judge panel.

However, the presence of senior judges is currently working to slow the pace of progressive judicial decisions, which is all the more reason to keep aggressively confirming judges.

Senate confirmation update -- Obama getting more appointments through

Later today, the Senate is going to vote to confirm Michelle T. Friedland to be a judge on the Ninth Circuit Court. You can read up on her here – she’s pretty darn impressive in both competence and politics. 

Oh, and by the way, the Senate will also appoint David Weill as the administrator of the Wages and Hours Division for the Department of Labor, you know, the people who stop low-wage workers from getting ripped off by their employers.

You probably haven’t read much of anything about either nomination. These appointments seem entirely unremarkable and ordinary. Frankly, they should be, it’s a routine part of making government function. And in the post-filibuster world, routine nominations, judicial and otherwise actually seem to be proceeding fairly smoothly for the first time in five years.

During the first four months of 2014, the Senate has confirmed 20 judicial nominations – the most of any of the first four months of any calendar year of the Obama administration. On average, Majority Leader Harry Reid seems to be confirming either one appeal court nominee or four district judges per week the Senate has been in session this year.

Things aren’t perfect.  In some cases Republicans are still blocking qualified nominees in committee through the blue slip system– like North Carolina’s Jennifer Prescod May-Parker. In other cases, Republicans aren’t providing any input on nominees at all – like in Texas while the state’s federal bench languishes, as Houston's ever-handy Charles Kuffner has pointed out. And in some cases, they are driving a hard line – insisting on having Obama nominate a large number of their nominees in exchange for seating a few of his, like in the Northern District of Georgia -- a deal that has irked the state's civil rights community. 

Even the Friedland nomination should have been voted on before the Senate left town for the Easter recess on April 10, but Republicans insisted upon using their allotted 15 hours of debate to slow down the nomination (though none of them actually planned to debate).

However, overall the nominees are both flowing in a more orderly manner through the confirmation process.  There are currently 50 judicial nominations awaiting action in the Senate (eight appeals and 42 district). Thirty-one of those have moved through the judiciary committee and are awaiting final confirmation.

Among those 31 include several  nominees from Arizona and South Carolina, who had been languishing for months in committee.

Once those are confirmed (hopefully by August) that will leave Obama with 50 appellate appointments and 214 district appointments – roughly on track to match George W. Bush’s total number of appointments.

Overall then, move to end the filibuster for most executive appointments seems to have been a good one.

Post nuclear update III: The Senate grinds on... two nominees in, two up and eight more on deck

The Senate cleared one big appointment and one medium-sized one on Monday, confirming Jeh Johnson as Secretary of Homeland Security and Anne Patterson to be Assistant Secretary of State for the Near East. A steady stream of nominations will be on the floor this week as well. Follow all the action here.

Johnson’s case was particularly interesting, as Republicans yielded back their 15 hours of post-cloture debate time (For a cabinet official, there would be normally 30 hours of post-cloture time. The Democrats had been yielding their time back to save time, while the Republicans had been keeping theirs to slow things down). Maybe the GOP has realized it would like to get home for Christmas……

Senators also voted to end debate on two nominations. First up is Alejandro Mayorkas, the nominee for Deputy Secretary of Homeland Security (Yes, I know – a cabinet secretary and a deputy secretary in the same department confirmed in one week, that’s incredible). Second, the John Andrew Koskinen was cleared for a final vote to run the Internal Revenue Service. Koskinen moved out of a committee hearing last week and will be confirmed over the objections of Orin Hatch, a Utah Republican who is the ranking minority member on the committee.  Both will be confirmed today.

Reid also filed for cloture on eight more nominees. By far the biggest one is Janet Yellen, slated to become the first chairwoman of the Board of the Federal Reserve. I suspect the GOP will yield back their post-debate time on her too, since she seems to be a fairly popular nominee, despite some opposition.

After that, it’s the parade of deputies; aka the people who actually implement a lot of policy but aren’t that well known. Here we have six appointments up for consideration:

Sloan D. Gibson: Deputy Secretary of Veterans Affairs

Sarah Sewall: Under Secretary of State (Civility Security, Democracy, and Human Rights)

Michael L. Connor: Deputy Secretary of the Interior

Sarah Bloom Raskin, of Maryland: Deputy Secretary of the Treasury

Jessica Garfola Wright: Under Secretary of Defense for Personnel and Readiness 

Then we have one judge thrown in for good measure:

Brian J. Davis: United States District Judge for the District of Florida

Finally, one member of an investigative board:

Richard Engler: Member of the Chemical Safety and Hazard Investigation Board 

I suspect we're going to see some more district judges (there's eight with committee approval awaiting a floor vote after Davis) and Robert Wilkens, Obama's third DC Circuit pick confirmed this week before the Senate recesses (perhaps  Carolyn McHugh for the 10th Circuit as well, who is also out of committee). I also speculate Reid will only let everyone go home after he gets unanimous consent to carry over all the existing nominees to the New Year.

For those of you scoring at home, we now have 12 nominees confirmed post-nuclear action (including one cabinet secretary, two circuit court judges, one housing secretary and four district court judges)

Post-nuclear Senate update: Pillard confirmed; more confirmations on the way

In a majority rule Senate, apparently a bit of Chai is enough to keep everyone working all night.

The "Chai" in question just happens to be Chai Rachel Feldblum, President Obama's long-stalled nominee for reappointment to the Equal Employment Opportunity Commission.

As I write this, she's not stalled any more.

On Wednesday evening, Senate Majority Leader Harry Reid asked for unanimous consent  to waive the post-cloture debate time on District Cornelia Pillard's nomination (which would have expired at 1 a.m. today) and invoke cloture on Feldblum, with confirmation votes to follow early this morning. As a result, every one could go home and get some sleep.

Iowa Republican Chuck Grassley objected.

So Reid kept the Senate in session all night.

This appears to be the equivalent of assigning Senate Republicans an eight-hour detention.

 Democrats confirmed Pillard at 1 a.m. by a vote of 51-44 and invoked cloture on Feldblum, 57-39.

After Feldblum gets confirmed for the EEOC this morning, the next up are four district court judges for the districts of Western New York, New Hampshire, and Montana (which has two vacancies). The appointments for New York and Montana will fill three judicial emergencies.

For those keeping score at home, that's two Circuit-Court judges, one chair of the Federal Housing Administration and one EEOC member. Incidentally, that's also three more well-qualified women and one more well-qualified African American in powerful positions in federal government. But who's counting?

This majority rule thing is kind of refreshing.

Post-filibuster stream of confirmations nears: Pillard first up followed by four district judges

So life in a post-nuclear Senate kicked off on Monday night.

We'll take the play-by-play from the Senate Democrats' floor report.

Majority Leader Harry Reid (D- Nevada) opened the proceedings at 6:43 p.m. by causally strolling up to the mike and agreeably asking for unanimous consent to move on all 80 executive and judicial nominations on the calendar.

(Watch closely kids, this is how you troll a legislative minority.)

Naturally, a Republican Senator (Lamar Alexander of Tennessee) objected, noting acidly that he wanted to see how the Senate would work without rules.

At 6:55 p.m. Reid then filed for cloture votes on 10 nominations. The first one of these for will occur on Wednesday morning at 11 a.m.

After each cloture vote, the motion will have to "ripen," meaning that debate and other parliamentary maneuvers can consumer up to a certain amount of time post-cloture.  According to the current rules, this time can exceed no more than 30 hours for cabinet-level posts or equivalents (Supreme Court Justices, Circuit Court Justices Federal Reserve Chairs, etc). For all other executive appointments, the amount of time is 8 hours, and for district judges the time is two hours.

So the first confirmation up is Nina Pollard at 10 a.m. local time for the D.C Circuit Court (Her cloture motion passed before the Thanksgiving recess, so the 30 hours on her motion has expired)

Starting Wednesday, we'll see cloture votes on four district court judges, five mid-level executive appointments and the Secretary for Homeland Security, Jeh Charles Johnson.

List of upcoming confirmations:

Judges:
Elizabeth A. Wolford (Western District New York -- a judicial emergency)
Landya B. McCafferty (District of New Hampshire)
Brian Morris (District of Montana -- judicial emergency)
Susan P. Watters (District of Montana -- judicial emergency)

Executive appointments:
Jeh Charles Johnson (Secretary of Homeland Security)
Deborah Lee James (Secretary of the Air Force)
Heather Anne Higginbottom (Deputy Secretary of State for Management and Resources)
Anne W. Patterson (Assistant Secretary of State, Near Eastern Affairs)
Chai Rachel Feldblum (Member, Equal Opportunity Commission)
Patricia M. Wald (Member, Privacy and Civil Liberties Oversight Board)

 Some of these are boring, but putting them in place makes the government work that much better.

I would imagine that the other D.C. circuit justices, Melvin Watt at the Federal Housing Administration and Janet Yellen at the Federal Reserve, along another half dozen or so district judges and numerous other mid-level appointments will follow in short order next week.

The gears of functioning government are grinding slowly into motion.

Bring on the death panels!: Senate Confirmations and the IPAB

After the Senate eliminated the filibuster on most nominations, the focus has been on judges, and rightly so.

However, one of the lesser-appreciated parts of the power of the Senate to run under majority rules is that now Democrats can fully stock the death panels and get to work denying care to those pesky, expensive senior citizen-- darn it, I just let the cat out of the bag.

All jokes aside, the demise of the filibuster does lift one of the major hurdles to getting what could be a critical part of the Affordable Care Act's bureaucracy running -- the Independent Payment Advisory Board.

The idea behind the IPAB is simple -- if Medicare spending per-person spending increasing increases by a number more than, a panel represents cuts. Those cuts can't charge recipients more or deny access to Medicare.What they can do is limit reimbursements to providers for certain procedures or possibly pharmaceuticals.  (See the ever helpful Kaiser Foundation for an overview)

This ability to say "no" is pretty constrained, but it should get providers' attention and grant Medicare some new leverage to keep costs down. (Think about how much lower drug costs are at the VA where the system negotiates drug prices across the system; the IPAB doesn't have that much power for Medicare, but it moves it in the right direction; better yet, the board can make some recommendations for private health insurers, which should do a bit more to cut costs)

Better yet, the system fast-tracks any recommendations through the House and Senate, where they automatically take effect unless both branches vote with 3/5s of their members to reject them and replace them with other cost savings (which means that some lobbyists' jobs just got a lot tougher).

The president appoints 15 people -- 3 nominees from himself, and three each in consultation with the majority and minority leaders of both houses of Congress. the GOP has been refusing to consult on their six members, but will likely be more likely to bargain now that the Democrats will be able to get their nine members confirmed through the Senate over GOP opposition.

All this is moot for now -- because Medicare expenses increased by 1.15 percent last year,  but thanks to getting rid of the filibuster,controlling health care costs in way that won't hurt patients is about to get a lot easier.

From Consent to Advice -- other possible avenues to block judges in the Senate

Yesterday, we all crawled out from our radiation shelters to behold the charred remains of the Senate landscape. You see, Harry "Major Kong" Reid engaged the nuclear option last Thursday, blowing up chamber procedure and changing to require only a majority vote to end debate on executive and non-Supreme Court judicial nominations.

So now what? Over the short term, the confirmations should flow fairly quickly. There are currently four appeals (including the three D.C. circuit nominees) and 13 district court nominations that have passed through the Senate Judiciary Committee and are awaiting floor action. They should fly through in a jiffy in December.

Behind that immediate flurry, the picture gets a bit murkier. There are currently 93 vacancies on the federal bench --  18 on the appellate level and 75 at the district level. Getting the 17 easy confirmations out of the way leaves 76 slots (14 appellate and 62 district). Of these Obama has nominees for six appellate and 30 district vacancies.

There are two ways Republicans can slow down or block nominations to these vacant slots.

Millett and Watt confirmations imminent?

I just checked up on the Senate Executive Nominations Calendar, and the following two names appear on the first page:

UNANIMOUS CONSENT AGREEMENTS 

Melvin L. Watt (Cal. No. 209)

Ordered, That with respect to the vote on the motion to invoke cloture on the nomination of Melvin L. Watt, of North Carolina, to be Director of the Federal Housing Finance Agency for a term of five years, the mandatory quorum required under Rule XXII be waived.

(October 28, 2013.)

Patricia Ann Millett (Cal. No. 327)

Ordered, That with respect to the vote on the motion to invoke cloture on the nomination of Patricia Ann Millett, of Virginia, to be United States Circuit Judge for the District of Columbia Circuit, the mandatory quorum required under Rule XXII be waived.

(October 28, 2013)

(Rule XXII is what gives the minority its filibuster power) 

Both Watt and Millett have been the subject of attacks from Republicans who want to block a more active Federal Housing Agency (which has been without a permanent head for years) and keep the President from placing any more nominees on the D.C Circuit Court. 

The DC Circuit is considered the second-most important court in the country, because it has jurisdiction over all federal agencies and its Conservative appointees have slowed or blocked the ability of federal agencies to protect worker rights, increase oversight on banks and other financial institutions, and protect the environment.

Millett is probably the least controversial of the three appointees for the D.C. Circuit Court, while Nina Pollard is the most controversial (she is known for her strong feminist views and record on Civil Rights; apparently believing in gender equality and civil rights is controversial nowadays)

I wonder if a deal has gone down trading Millett, Watt, Obama's other D.C. Circuit nominee Robert Wilkens, and Tom Wheeler as FCC chair in exchange for Pollard withdrawing her candidacy. I'd hate to lose Pollard's candidacy, but if Obama gets to name another appointee of his choice, it's win-win-win for the Democrats. 

I'm also wondering if Harry Reid has 51 votes to end the filibuster, at least for certain types of judicial nominees. That would explain the GOP's sudden move to surrender on two nominees that they hate a lot.

Either way, if this is true, it is good news for sane public policy.

(Note: please feel free to tell me if I'm misreading the Sen. Executive calendar -- it's entirely possible, though I tried to do my homework here.)  

(UPDATE:  10/31: And Watt just got filibustered. Looks like I was wrong. Nuts.)