By Sally J. Kenney
Thursday, January 17, 2013
Numerous areas of the U.S. are mired in judicial emergency, meaning the courts can't keep up with the workload of justice. Some of Obama's appointees who have waited the longest for confirmation are women. We must all demand the Senate give them an up or down vote.
Credit: Joe Gratz on Flickr, under Creative Commons (CC BY-NC 2.0).
(WOMENSNEWS)--While women have been gnashing our teeth about the male composition of President Barack Obama's second-term cabinet, we've been distracted from what's going on in the federal judiciary, where the Senate has stalled the president's nominees--particularly those of women.
Obama has renominated 33 judicial nominees who languished in the last Congress. Eleven of these nominees had been recommended by the Senate Judiciary Committee, including four circuit judges. One, Richard Taranto, had been waiting since March 2012 for a vote of the full Senate.
Four of the nominees who have waited the longest for the Senate Committee to hold hearings-- Caitlin Halligan (D.C. Circuit), Rosemary Marquez (Arizona), Jill A. Pryor (11th Circuit) and Elissa Cadish (Nevada)--are women. Nominee for the Middle District of Louisiana, Shelly Deckert Dick, finally received a hearing and was voted out of committee in the last days of the Congress, only to have the Senate fail to take action on the committee's favorable recommendation. Female circuit court nominees who waited in vain for action include Patty Shwartz (Third Circuit).
The federal judiciary currently has 72 vacancies, 17 more than when Obama took office. Six federal circuits and 27 federal district courts have a judicial emergency, according to the federal courts themselves, meaning courts simply do not have enough staff to manage their workload, delaying justice.
When Obama's nominees did come to a vote last term, they were unanimously confirmed or received significant majorities with bipartisan support. Nevertheless, some senators have been using an arcane procedure to delay nominees that would be confirmed if the Senate voted.
Without public notice or accountability, they shut down the confirmation process months before the presidential election and have threatened nominees with a filibuster even if they enjoyed the support of both Republican senators from their home states.
They have thus given the president and the Senate majority leader the unhappy choice of proceeding with other Senate business or acting on judicial nominations, but not both.
Our federal courts decide important cases of reproductive rights, voting rights, affirmative action, employment discrimination and same-sex marriage--to name but a few of the fundamental rights we hold dear in the balance during the Supreme Court's next session.
It is imperative that women demand that Republicans end this obstruction of judicial nominees and fill all seats with judges who understand everyday Americans. Women need to turn up the heat on our senators to act swiftly and need to draw the public's attention to why courts matter.
The 20 female senators in the new Congress should seize this important moment. They do not need the agreement of their colleagues in the House to accomplish what could be Obama's greatest legacy--a diverse and representative third branch of government.
Obama has a better record of nominating women and minority men than any president, more than 40 percent. But he has also been slow to nominate and the Senate has acted much more slowly on his nominees than the Democratic Senate did on President George W. Bush's nominees.
When Bush left office, Republican presidents had appointed more than 60 percent of sitting federal judges. Unless Obama and the Senate act, the federal courts will continue to be dominated by these GOP appointees.
The Senate filibuster procedure was designed to slow down the process if a senator believed the chamber was moving too swiftly on an important matter that, if it considered more carefully, would act differently.
In the past, a senator was required to speak nonstop to draw colleagues' attention to such an issue.
Now senators can merely withhold unanimous consent and if the Senate majority leader calls a halt and forces a vote he loses the ability to conduct other pressing business for a number of hours.
This process was intended to force careful consideration of legislation, not impede presidential nominations by stopping the legislative work of the Senate. A rule to ensure democratic deliberation is now twisted to allow a few to thwart the will of the many.
As just one example, in my state, Louisiana, the Senate adjourned without acting on the Senate Judiciary Committee's favorable recommendation of Dick for the U.S. District Court for the Middle District of Louisiana. Once Obama won re-election, Sen. David Vitter no longer opposed her confirmation. She has enjoyed the continuous support of Louisiana's other senator, Mary Landrieu.
A window of opportunity is open for a short time. The closer we move to the next presidential election, the more Republicans will continue to simply run out the clock, as they did last term. Every American should demand that these nominations go forward to ensure that justice is done.
Sally J. Kenney is the Newcomb College endowed chair, a professor of political science and executive director of the Newcomb College Institute of Tulane University. She is a co-founder of the Infinity Project to get women appointed to the Eighth Circuit Court of Appeals. Her 2013 book, "Gender and Justice: Why Women in the Judiciary Really Matter," is published by Routledge Press.
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