Judges

On Friday, the American Constitution Society marked International Women’s Day with a blog on one of our favorite subjects – diversity on the federal bench. In case you weren’t able to enjoy this great post on Friday, read on:

Making Progress, Albeit Slowly, on Diversifying the Federal Bench

In celebration of International Women’s Day, ACS highlights the progress made over the last four years to diversify our federal judiciary. Read more »

We’ve said it before, and we’ll say it again: President Obama has made significant steps towards increasing the diversity of the federal judiciary in a number of important ways. 41% of Obama’s confirmed judges have been women — raising the number of total female active federal judges to approximately 30% overall. At the end of President Obama’s first term alone, there have been more female, black, Hispanic, and openly gay federal judges than confirmed during President George W. Bush’s two terms.

This brings us to the recent nomination of the Jane Kelly, who, if confirmed, would be the second-ever woman to serve on the Eighth Circuit Court of Appeals. An article this morning that described one case recently decided by the Eighth Circuit is illustrative of how diversity matters to outcomes of actual cases that are decided and women contribute to the quality of justice. The article quotes the Executive Director of the Infinity Project, who describes the case of Shawanna Nelson, an Arkansas prisoner who filed a lawsuit over being shackled to a hospital bed while in labor. Read more »

Tuesday, two more federal district court judges, John Dowdell (Northern District of Oklahoma) and Jesus Bernal (Central District of California) were confirmed by the Senate. This follows on the heels of confirmation votes on four district court judges last week, and, potentially one or more votes this afternoon. Although some commentators have characterized these votes as progress, which I suppose it would be as a relative matter, it's important not to forget the Senate minority's blockade of confirmation votes in the months preceding the election: for example, Senate Minority Leader McConnell announced in mid-June that no more circuit court nominees would receive a vote until after the elections, and backed it up with a filibuster of the nominee to an Oklahoma seat on the 10th circuit in July. Further, Senate Republicans only allowed votes on three district court nominees in September. And it's not as though the votes were coming fast and furious before June. Read more »

A recent article pointed out that the Oakland federal courthouse, in the Northern District of California, is home to six federal judges – three lifetime appointees and three magistrates – all of whom are women. Moreover, five of those six judges are women of color. This appears to be the first time a courthouse of this size has had an all-women bench, and stands in stark contrast to the overall representation of women in the federal district courts, which hovers around 30%.

Jeremy Fogel, the director of the Federal Judicial Center (on leave from the Northern District of California himself) noted that "It's not just the courthouse and the majesty of the building, the dignity of the courtroom, that matters … but are people in various positions in the judiciary someone they can identify with? From the standpoint of appearances, [an all-women court is] a good thing." Read more »

It used to be fairly routine for the Senate to confirm handfuls of judicial nominees – especially district court nominees – at a time. Indeed, Senator Patrick Leahy recently recounted that the Senate confirmed 18 of President George W. Bush's judicial nominees in one day. The Senate could have equaled this impressive feat on Monday, when a total of 18 nominees were ready for a vote, and time was scheduled on the calendar for a confirmation vote. But instead, just as it has for the last two weeks, the Senate confirmed one district court nominee. One!

And it's not as though the nomination required extended debate, or that the outcome was seriously in question – Kevin McNulty, nominated to the district court in New Jersey, was confirmed on Monday by a vote of 91-3. So why wouldn't the Senate just vote on all 18 – or 14 (the total number of district court judges ready for votes), or seven (the total number of nominees approved by the Senate Judiciary Committee through April 19, the day now-Judge McNulty was voted out of committee), or six (the number of judicial emergencies among those nominees), or even two (there is another nominee from New Jersey, voted out of committee the same day as Judge McNulty) nominees?

Well, simply stated: obstruction.

It's no secret that unprecedented obstruction in the Senate has slowed the accomplishment of the people's business to a crawl. And the judicial confirmation process has been no exception. Read more »

Yesterday, the Senate confirmed Mary Geiger Lewis to a seat on the District Court of  South Carolina by a vote of 64-27. Upon her confirmation, Judge Lewis becomes the third female judge (of ten judges total) on this court, and the 63rd woman confirmed to a district court seat during the Obama Administration. Her confirmation is good news, coming on the heels of a CRS report that concluded both that the number of district court vacancies has increased rather than decreased since the beginning of President Obama's administration, and that "fewer Obama district court nominees have been confirmed by the Senate than were confirmed during the first terms of the four preceding Presidents." Read more »

This week the Senate confirmed Timothy Hillman to the district court in Massachusetts by a vote of 88-1 (with Senator Lee the only no vote, in continued protest of President Obama's recess appointments to the NLRB and consumer protection bureau back in January). In addition, the Senate will vote this afternoon on the nomination of Jeffrey Helmick to a seat on the Northern District of Ohio. After today's vote, there will be 14 nominees, including one female circuit court nominee and two female district court nominees, waiting for a floor vote. (Incidentally, click on the links for news coverage of the investitures of Stephanie Thacker, the first Fourth Circuit female judge from West Virginia, and Morgan Christen, the first Ninth Circuit female judge from Alaska). Read more »

Last week, the First Circuit Court of Appeals ruled that the federal Defense of Marriage Act (DOMA), which defines marriage for all purposes under federal law as between one man and one woman, violates the U.S. Constitution. And yesterday, the Ninth Circuit announced that it would not review en banc the panel decision in Perry v. Brown, which held that California's constitutional amendment banning same-sex marriage violates the federal Constitution's Equal Protection Clause. The First Circuit's decision last week paired with the Ninth Circuit's decision not to further review Perry raises the possibility that the Supreme Court may weigh in on questions of marriage equality under the Constitution sooner rather than later.

The First Circuit's decision is the first time a federal court of appeals has held that DOMA is unconstitutional. (The National Women's Law Center joined a friend-of-the-court brief arguing that DOMA violated the Equal Protection Clause.) The First Circuit's ruling was issued in two consolidated cases. In Gill v. Massachusetts, same-sex couples married under state law argued that Section 3 of DOMA violated the Equal Protection Clause by preventing same-sex spouses of federal employees from receiving the same spousal benefits as opposite-sex spouses; and in Massachusetts v. Department of Health and Human Services, the commonwealth of Massachusetts argued that this section of DOMA was invalid under the Tenth Amendment and the Spending Clause because federal funding for specific programs was premised on denying benefits to same-sex married couples. In 2010, a Massachusetts district court had ruled that Section 3 of DOMA was unconstitutional in both cases. Read more »

Along with 150 other people from 27 different states, today I attended a briefing on the judicial vacancy crisis. Attorney General Eric Holder, White House Counsel Kathy Ruemmler, and other key Administration staff spoke about the importance of filling vacancies on the federal judiciary, the President's commitment to increasing the diversity of the federal bench, and ways to end the confirmation logjam in the Senate. The audience's passion for this issue was palpable, and there was a spirited dialogue. Read more »