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)